Union Judiciary Flashcards
Supreme Court
Branches of the government:
1. Executive branch
2. Legislative branch
3. Judicial branch
Composition of the supreme court
Introduced by the government of India Act of 1935
It enforces both Central and state laws
First supreme Court in India was set up in Bengal on 1st October 1937
The official supreme Court of India was set up 26th January 1950. It is in Delhi
Its motto: yato dharmas tata jayah (where there is truth, there is victory)
The Indian constitution says that the court is an integrated system whereas the US constitution states that their’s is a double system of court
Supreme Court has replace the British Privy Council as highest court of appeal
Articles 124 to 147, in part 5 deals with organisation, independence, jurisdiction powers and procedures
Number of positions, sanctioned strength 34 (33 judges and 1 CJI)
Organisation
In February 2009, the centre noticed and increase in the number of supreme court judges of India from 26 to 31 including one chief justice of India, according to the SO enactment of supreme Court (number of judges) amendment Act of 2008
Originally the number of supreme Court judges was fixed at 8 (1 CJI and 7 other judges).
10 in 1956, 13 in 1960, 17 in 1977, 25 in 1986
Appointment
From 1950 to 73, it was customary to call the senior most charge the CJI
In 1973, the convention was violated as A.N. Ray was appointed CJI by superceding three senior judges
In 1977, MH Beg was appointed CJI by superceding 10 senior judges
Controversy over consultation:
First judges case 1982,
Court held that the consultation does not mean concurrence and it only implies exchange of views
Second judges case 1993,
Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. Hence, it ruled that the advice tendered by the CJI is binding on the president in matters of appointment of the judges of the supreme court. But the CJI would tender his advice on the matter after consulting 2 of his senior most colleagues
Third judges case 1998,
The court opined that the consultation process to be adopted by the CJI required a ‘consultation of plurality judges’. The sole opinion of the CJI is does not constitute the consultation process and he should consult a collegium of four senior most judges of the supreme court. He should not send a recommendation to the government even if two judges give an adverse opinion.
The court held that the recommendations made by the CJI, who complying with the norms and requirements of consultation process, are not binding on the government
Qualification
Has to be a citizen of India
He should have been a judge of a High Court for 5 years
He should have been an advocate of a High Court for 10 years
He should be a distinguished jurist in the opinion of the president
The constitution has not prescribed a minimum age for the appointment of a judge of the supreme court
Oath or affirmation
To bear true faith and allegiance to the constitution of India
To uphold the sovereignty and integrity of India
To discharge his duties to the best of his ability, knowledge, judgement and perform the duties of the office without fear or favour, and affection or ill will.
To uphold the constitution and the laws
Tenure
The constitution has not fixed the tenure of a judge of the supreme court
He holds office until he attains the age of 65 years.
Any question regarding his age is to be determined by such authority and in such a manner as provided by the parliament
He can resign from his office by writing to the president
He can be removed from the office by the president on the recommendation of the Parliament after impeachment
Impeachment
On the grounds of misbehaviour and incapacity
Supreme Court judges can be removed from their office by an order of the president
President can issue a removal order only after an address by the Parliament has been presented to him in the same session for such removal
The address must be supported by a special majority of each house, that is majority to total membership of that house and majority of not less than ⅔ of the members of that house present and voting
Process:
The judges enquiry act, 1968:
Regulate the procedure related to the removal of a judge
Removal motion signed by 100 members of lok sabha or 50 members of the rajya sabha to the speaker or chairman
The speaker or chairman may admit the motion or refused to admit it
If it is admitted, then the speaker or chairman is to constitute a three member committee to investigate into the charges
Committee should consist of, the CJI or a judge of supreme court/the chief justice of high court/distinguished jurist
If the committee finds the judge to be guilty of misbehaviour or suffering from an incapacity then the house can take up the consideration of the motion
After the motion is passed by each house of the Parliament by special majority, an address is presented to the president for the removal of the judge
Finally the president passes an order removing the judge
No judge of the supreme Court has been impeached so far
The first and only case of impeachment is that of Justice V Ramaswamy of supreme Court (1991 to 93). Though the enquiry committee found him guilty of misbehaviour, he could not be removed as the impeachment motion was defeated in the lok sabha due to the Congress party abstaining from voting.
Seat of supreme Court
Constitution declares and also authorises the CJI to appoint other place or places as seats of the supreme court.
He can take decision in this regard only with the approval of the president.
This provision is only optional and not compulsory. This means that no court can give any direction to the president or to the chief justice to appoint any other place as a seat of supreme court
Acting Chief justice
The president can appoint a judge of supreme Court as an acting chief justice if the office of CJI is vacant, if the CJI is temporarily absent or if the CJI is unable to perform the duties of his office
Ad hoc judge
When there is a lack of quoram of permanent judges to hold or continue any session of supreme Court
The Chief justice of India can appoint a judge of high court as an ad hoc judge of supreme Court for temporary period only
He can do so only after consultation with the Chief justice of the High Court concerned and with 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 setting of supreme Court and give priority to other duties of his office
While so attending, he enjoys all the jurisdiction, power, privileges, discharges and duties of a judge of the supreme Court
Retired judges
At any time the Chief justice of India can request a retired charge of supreme Court or retired judge of the 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 the person to be appointed
Such a judge is entitled to such allowances as the President may determine
He will also enjoy all the jurisdiction, power and privileges of the judges of supreme court but he will not be otherwise deemed as a judge of the supreme Court
Procedure of court
The supreme court can, with approval of president, make rules for regulating generally the practice and procedure of court,
The constitutional cases or references made by the president under article 143 are decided by a bench consisting of at least five judges.
All other cases are usually decided by a bench of not less than 3 judges
The judgements are delivered by open court
All judgements are by majority vote but if differing then the judges can give dissenting judgements or opinions
Salaries and allowances
Determined from time to time by parliament
In 2009, salary of CJI increased from 33,000 per month to 1,00,000 per month
And the salary of a judge increased from 30,000 a month to 90,000 a month
According to the 7th pay commission, there was a 200% hike in the salary of supreme Court and High Court judges:
CJI & CJ of HC: from 1lakh to 2.8lakhs
Judges: from 90,000 to 2.5 lakhs
Independence of the supreme court
Significant role in the Indian democratic political system
Highest court of appeal
Guarantor of fundamental rights of citizens
Guardian of constitution
Independence becomes very essential for the effective discharge of duties
Free from encroachments, pressures, interferences of executive (COM) and legislature (parliament)
Should be allowed to do justice without fear or favour
Constitution has made provisions to ensure its independence and impartial functioning
Provisions are made on the mode of appointment, security of tenure, expenses charged on the consolidated fund, fixed service of conditions, conduct of judges cannot be discussed, ban the practice after retirement, power to punish for its contempt, freedom to appoint its staff, its jurisdiction cannot be curtailed and separation from executive
Powers of the supreme court
Constitution has conferred very extensive jurisdiction and vast powers on the supreme court
Not only a federal court like the American supreme Court but also a final Court of appeal like the British house of Lords
Final interpreter and guardian of constitution
Guarantor of fundamental rights of the citizens
Advisory and supervisory power
Thus, Alladi Krishnawwami Ayyar, a member of the drafting committee remarked that the supreme Court of India has more power than any other supreme Court in any part of the world
Classification of powers and jurisdiction
Original jurisdiction:
Disputes between different units of Indian federation (Central and one or more States, centre and any state or States on one side and one or more States on the other, between two or more States). In the mentioned federal disputes, supreme Court has exclusive original jurisdiction
Writ jurisdiction:
Constitution has constituted the supreme court as the guarantor and defender of the fundamental rights of the citizens. The SC is empowered to issue writs including, habeas Corpus, prohibition, quo warranto, certiorari for the enforcement of fundamental rights of an aggrieved citizen
Supreme Court has original jurisdiction in the sense that an aggrieved citizen can directly go to the supreme court
Writ jurisdiction of SC is not exclusive
High courts are also empowered to issue writs for the enforcement of fundamental rights
Appellate jurisdiction:
SC has not only succeeded the federal court of India but also replace the British privy council as the highest court of appeals
The SC is primarily a court of appeals and hears appeals against the judgements of the lower courts
It enjoys a wide Appellate jurisdiction: appeals in constitutional matters, appeals in civil matters, appeals in criminal matters, appeals by special leave
Advisory jurisdiction:
Article 143 authorises the President to seek the opinion of supreme Court in two categories of matters: on any question of law or that of public importance which has arisen or which is likely to rise
On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanador or other similar instruments.
Court of record
2 Powers:
A) The judgements, proceedings and acts of supreme court are recorded for perpetual memory and testimony
These records are admitted to be of evidentiary value and can’t be questioned when produced before any court
They are recognised as legal precedents and legal references.
B) It has the power to punish for the contempt of court either with simple imprisonment (upto 6 months) or fine upto 2000 or both
In 1991, SC has ruled that it has the power to punish for the contempt not only of itself but also of high court and subordinate courts within the country
Power of judicial review
Judicial review is the power of 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 by the supreme court as illegal, unconstitutional or invalid (null and void)
Can’t be enforced by the government
Other powers
Problems related to election of president or vice president will be heard by supreme Court
Misbehaviour by member of UPSC will be referred to supreme court by president
Can self review its own mistakes from the past
If any case is pending in High Court, it can be taken over by supreme Court
The supreme court advocates
Three types:
Senior advocates:
Designated by supreme Court or High Court
Cannot appear without an advocate on record in supreme Court or Junior
Advocates on record:
These advocate the entitled to file any matter of document before supreme Court
They can also file an appearance or act for party in supreme Court
Other advocates:
Names are written in state for council, and maintained under advocates act of 1961
They cannot file any document or matter before court
Take an appear and argue on instruction from advocates on record
Difference between the Indian supreme Court and American supreme Court
Indian SC: Its original jurisdiction was confined to federal cases
American SC: original jurisdiction covers not only federal cases but also cases related to navel forces, Maritime activities and ambassadors
Indian SC: its appallate restriction covers constitutional civil and criminal cases
American SC: confined to constitutional cases
Indian SC: it has a very wide description to grant special leave to appeal in any other matter against the judgement of any Court or tribunal (except military)
American SC: it has no such plenary power
Indian SC: it has advisory jurisdiction
American SC: it has no advisory jurisdiction
Indian SC: its scope of judicial review is limited
American SC: scope of judicial review wide
Indian SC: it defends the right of the citizens according to the procedure established by law
American SC: it defence the right of the citizen according to the due process of law
Indian SC: its jurisdiction and powers can be enlarged by the parliament
American SC: its jurisdiction and powers are limited to that conferred by the constitution
Indian SC: it has power of judicial superintendence and control over state high court due to integrated judicial system
American SC: it has no such power due to double or separated judicial system
Judicial review
It is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders at both the Central and state levels
It is a doctrine taken from the USA,
It is a part of the basic structure of the constitution
Is found violative of constitution, it is declared as illegal, unconstitutional or invalid (null and void)
Justice Syed Shah Muhammad Qadri classified judicial review into three categories: judicial review of constitutional amendments, judicial review of legislation of parliament, State legislature, subordinate legislations and judicial review of administrative action of union, States authorities under States
Various cases that defined the power of judicial review:
Golaknath case, 1967
Bank nationalisation case, 1970
Privy purses abolition case, 1971
Keshavananda Bharati case, 1973
Minerva mill case, 1980
In 2015, the supreme court declared both the 99th constitutional amendment Act and the NJAC act of 2014 unconstitutional null and void
Need for judicial review
To uphold the principle of the supremacy of constitution
To maintain federal equilibrium, that is the balance between the centre and state
To protect the fundamental rights of citizens
The function of judicial review is part of the constitutional interpretation itself
It adjusts the constitution to meet new conditions and the needs of time
