SUPREME COURT of INDIA
ARTICLE 124 : Establishment and Constitution of Supreme Court(1)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 seven other Judges.
Note:
- At present (32 Judges including Chief Justice of India)(2) The judges of the Supreme Court are appointed by the President. The CJI is appointed by the President after consultation with such judges of the Supreme Court and high courts as he deems necessary.
- Maximum possible strength 34.
- Originally the strength was fixed at 8 (including CJI)
• Judges hold office until the age of 65 years.(3) Qualification of Judges
• A Judge may be writing under his hand addressed to the President, resign his office.
• A Judge may be removed in such a manner as Parliament may provide law.
• Citizen of India(4) A Judge can be removed from his office, by passing an address in each house with 2/3 members of that house present and voting. Then President issues an order for removal.
• Work, 5 years as a Judge of High Court
• Work as a Advocate of High Court for 10 years.
• Distinguished jurist in the opinion of the president.
• No minimum age for appointment.
Ground of removal- Proved misbehaviour or incapable.
(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and Proof of the misbehaviour or incapacity of a Judge under clause(4)
(6) Oath or Affirmation- Oath or Affirmation before president or some person in that behalf by him.
(7) No person who has held office as a Judge of Supreme Court shall need or act in any court or before any authority within the territory of Indian.
ARTICLE 124A : National Judicial Appointments Commission
(1) There shall be a commission call National Judicial Appointments Commission consisting of the following, namely: -
(a) CJI, Chairperson, ex-officio
(b) Two Senior most Judges
(c) Union law minister
(d) Two eminent persons nominated by the committee consisting of PM, CJI & leader of opposition in the House of People.( IF no leader of opposition then the leader of single largest opposition party )
i). Two eminent persons belongs to scheduled castes, the scheduled Tribe, Other Backward Classes, Ministries or Women.
ii). Two nominated persons will be nominated for a period of three years.
(2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or invalidated merely on the ground of the existence of any vacancy or defect in the constitution of commission.
ARTICLE 124B : Function of Commission
The duty of the National Judicial Appointment Commission is to -
(a) Recommend persons for appointment as chief Justice of India, Judges of the Supreme Court, Chief Justices of the High Courts and other Judges of the High Courts.
(b) Recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
(c) Ensure that the person recommended is of ability and integrity.
ARTICLE 124C : Power of Parliament to make laws
Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.
Collegium System :
• Collegium System is in practice since 1998.• There is no mention of the Collegium either in the Original Constitution of India or in successive amendments.
Working of Collegium System and NJAC :
• The Collegium recommends of the names of lawyers or Judges to the Central Government. Similarly, the Central government also sends some of its proposed names to the Collegium.• Collegium considers the names Or suggestions made by the government and resends the file to the government for final approval.• IF the Collegium resends the same name again ,then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of Judges takes a long time.• Again, Through the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act (NJAC) was established to replace the Collegium system for the appointment of Judges.• However, the Supreme Court upheld the collegium system and struck down the NJ AC as unconstitutional on the grounds that the involvement of political executive in Judicial Appointments was against the principles oF basic structure of the Constitution. i. e. The Independance of Judiciary.
Who heads the Collegium System :
• Supreme Court Collegium headed by the Chief Justice of India and comprises four other Senior most Judges of the Supreme Court.• High Court Collegium is led by Chief Justice of that high Court and four other Senior most Judges of the Court. Names recommended for appointment by a High Court Collegium reaches the government only after approval by the chief Justice of India and the Supreme Court Collegium. ( Notes - Means monopoly of Supreme Court Collegium & Chief Justice of India.)• Judges of the higher Judiciary are appointed only through the Collegium System and the government has a role only after names have been decided by the Collegium.
Procedure for Judicial Appointments:
1. For Chief Justice of India ( CJI )
• The President of India appoints the CJI and other SC Judges• As far as the CJI is concerned, the outgoing CJI recommends his successor.• In practice, it has been strictly by seniority basis. ( Even Since the Supersession controversy of 1970s)
2. For Supreme Court (SC) Judges
• for other Judges of the SC, the proposal is initiated by the CJI.• The CJI consults the rest of the Collegium Members, as well as the Senior most Judge of the Court hailing from the High Court to which the recommended person belonges.• The Consultees must record their opinions in writing and it should form part of the file.• The Collegium sends the recommendation to the law Minister, who forwards it to the Prime Minister to advise the President.
3. For chief Justice of High Courts:
• The chief Justice of the high Court is appointed as per the policy of having chief Justice from outside the respective States.• High Court Judges are recommended by a Collegium comprising the CJI and two Senior most Judges of high court .• The proposal, however, is initiated by the outgoing Chief Justice of the high court concerned in Consultation with two Senior most Colleagues.• The recommendation is sant to the Chief Minister who advises the governor to send the proposal to the Union law ministers.
Critical About the Collegium System
• Opaqueness and a lack of transparency• Scope for Nepotism• Embroitment in public controversies• Overlooks several talented Junior Judges advocates.
ARTICLE 125 : Salaries etc. of Judges.
• The salaries, allowances, privileges, leave and pensions of the judges of the Supreme Court are determined from time to time by parliament.• They cannot be varied to their disadvantage after their appointment except during a financial emergency.
ARTICLE 126 : Appointment of acting Chief Justice.
• Vacant or absence by any reason or unable to perform the duties -• Other Judges of the Courts may be appointed by the President as acting chief Justice.
ARTICLE 127 : Appointment of ad hoc Judges.
• 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. He enjoys all the jurisdiction, powers and privileges (and discharges the duties) of a judge of the Supreme Court.
ARTICLE 128 : Attendance of retired Judges at sittings of the Supreme Court.
• At any time, the CJI can request a retired judge of the Supreme Court or a retired judge of a high court to act as a judge of the Supreme Court for a temporary period. (who is duly qualified for appointment as a judge of the Supreme Court)• The previous consent of the President, he entitled to such allowances as the president may determine. He will enjoy all the jurisdiction, powers and privileges of a judge of the Supreme Court.
ARTICLE 129 : Supreme Court to be a court of record.
• The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
• The Indian Constitution empowers the Supreme Court to be a Court of record.
• Supreme court has been Empowered to punish for contempt itself.
ARTICLE 131 : Original Jurisdiction of Supreme Court.
The SC (as a federal court of India) possesses Original jurisdiction to decide the disputes arising between different units of the Indian Federation like:
Centre and one or more states; or Centre & any state(s) on one side and one or more states on the other; or Two or more states.
Note: In the above-mentioned cases, the Supreme Court has exclusive original jurisdiction, which means that no other court in the country can decide such disputes and SC has the power to hear such disputes in the first instance & not by the way of appeal.
However, a few points need to be noted: -
(a) The dispute must involve a question of law or fact on which the existence/extent of a legal right depends. Thus, the questions of political nature are excluded from it.(b) Any suit brought before the Supreme Court by a private citizen against the Centre or a state cannot be entertained under this article.
The Jurisdiction of a Supreme Court can be classified as:
• Writ Jurisdiction
• Original Jurisdiction• Appellate Jurisdiction• Advisory Jurisdiction• A Court of Record• A Power of Judicial Review among other power.
Writ Jurisdiction :
The Supreme Court is empowered to issue writs, including habeas corpus, mandamus, prohibition, quo-warranto 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 go directly 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.
Original Jurisdiction :
The Constitution of India grants original jurisdiction to the Supreme Court on all cases involving the enforcement of fundamental rights of citizens.
Thus, the Supreme Court has the power to grant writs, directives, and orders, such as mandamus, habeas corpus, quo warranto, prohibition, and certiorari.
The Supreme Court also has the authority to order the transfer of a criminal or civil matter from one state's high court to another state's high
court. It can also transfer matters from one subordinate court to the State High Court of another state.
The Supreme Court, as a federal court, hears cases involving the Indian Federation's various components. Example, any disagreement:
(i) Between the Centre and one or more states;(ii) Between the Centre and any state or states on one side and one or more other states on the other;Between two or more states.(iii) If the Supreme Court determines that cases involving the same legal issues are pending before it and one or more High Courts, and that these are important legal issues, it has the authority to withdraw the cases from the High Court or Courts and resolve all of the cases itself.
Appellate Jurisdiction :
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:
• Appeals in constitutional matters• Appeals in civil matters• Appeals in criminal matters• Appeals by special leave
Appellate Jurisdiction : The Constitution under Article 143 authorises the President to seek the opinion of the Supreme Court in the two categories of matters:
• On any question of law or fact of public importance which has arisen or which is likely to arise.• On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanador other similar instruments.
A Court of Record :
As a Court of Record, the Supreme Court has two powers:
• 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.• 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.
A Power of Judicial Review among other power :
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.
The Supreme Court's jurisdiction does not include the following:
• A dispute arising out of any pre-Constitution treaty, agreement, covenant, engagement, sanad or other similar instrument.• A dispute arising out of any treaty, agreement, etc.,which specifically provides that the said jurisdiction does not extent to such a dispute.• Inter-state water disputes.• Matters referred to the Finance Commission.• Adjustment of certain expenses and pensions between the Centre and the states.• Ordinary dispute of Commercial nature between the Centre and the states.• Recovery of damages by a state against the Centre.
ARTICLE 132 : Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases
• Appellate jurisdiction of the Supreme Court in constitutional cases. In constitutional cases, an appeal can be made to the Supreme Court against the judgment 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.
ARTICLE 133 : Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
• In civil cases, an appeal lies to the Supreme Court from any judgment of a high court if the high court certifies– that the case involves a substantial question of law of general importance 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.
ARTICLE 134 : Appellate jurisdiction of Supreme Court in regard to criminal matters.
• The Supreme Court hears appeals against the judgment in a 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 death has taken before itself any case from any subordinate court and convicted the accused person and sentenced him to death certifies that the case is a fit one for an appeal to the Supreme Court.• In 1970, the Parliament had enlarged the Criminal Appellate Jurisdiction of the Supreme Court. Accordingly, an appeal lies to the Supreme Court from the judgement 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 for ten years has taken before itself any case from any subordinate court and convicted the accused person and sentenced him to imprisonment for life or for ten years.
ARTICLE 135 : Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court.
• Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.
ARTICLE 136 : Special leave to appeal by the Supreme Court.
• The Supreme court. It means that the Supreme Court is authorised to grant in its discretion special leave to appeal from any judgement in any matter passed by any court or tribunal in the territory of India (except military tribunal and court-martial).• This provision contains the four aspects as under - i) it is a discretionary power and hence, cannot be claimed as a matter of right.• It can be granted in any Judgment whether final or Interlocatory.• It may be related to any matter - constitutional, civil, criminal, income-tax, labor, revenue, advocates, etc.• It can be granted against any court or tribunal and not necessarily agaista high count (of Course, except a military court )
ARTICLE 137 : Review of judgments or orders by the Supreme Court.
• The Supreme Court has the power to review any of its judgments or orders.
Scope of Review :
1. To correct a patent error.2. Not minor mistakes of inconsequential import.3. Not to take fresh stock of the case.
Filing Review Petition :
1. Any person aggrieved by a ruling can seek a review.2. Must file within 30 days from the date of Judgement.
Grounds for Considering Review Petition :
1. If any important matter or evidence is found2. Mistake or error apparent on the face of record.3. Any other sufficient reason this is analogous to the other two grounds.
Option after Review pation fails :
1. In Roopa Hurra v Ashok Hurra case (2002), the Court evolved the concept of a curative petition, which can be heard after a review petition is dismissed.
ARTICLE 138 : Enlargement of the Jurisdiction of the Supreme Court
• The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer.• The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court.
ARTICLE 139A : Transfer of certain cases
• The Cases involving the same question of law pending before Supreme Court and one or more high Courts or before two or more high courts, The Supreme Court may withdraw the case or cases pending before the High Court of High Courts and dispose all the Cases itself.• Supreme Court may transfer any case, appeal or other proceedings before any high court to any Other high Court.
ARTICLE 140 : Ancillary Power of Supreme Court.
• Parliament may by law make provision for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution.
ARTICLE 141 : Law declared by Supreme Court to be binding on all courts.
• The law declared by the Supreme Court shall be binding on all courts within the territory of India.
ARTICLE 142 : Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
• It deals with Enforcement of decrees and orders of the Supreme Court. It states that the Apex Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing "complete justice" in any case pending before it.• Such orders of the Supreme Court are enforceable throughout the territory of India as prescribed by any law made by Parliament or order of the President of India.
ARTICLE 143 : Power of President to consult Supreme Court.
• This article authorise the President to seekthe opinion Of the Supreme Court in the two categories of matters:
• 1. On any question of law or fact of public importance which has arisen or which is likely to arise. In this case Supreme Court Can refuse to tender its opinion.• 2. Any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, samad or other similar instruments. In this case, the Supreme Court must tender its opinion to the President.
Note: In both cases, the opinion sexpressed by the Supreme Court is only advisory and not a Judicial pronouncement. Hence, it is not binding on the President. He may follow or may not follow the opinion.
ARTICLE 144 : Civil and judicial authorities to act in aid of the Supreme Court.
• All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
ARTICLE 144A : Special provisions as to disposal of questions relating to constitutional validity of laws. Omitted by the Constitution (Forty-third Amendment) Act, 1977 - Repealed.
ARTICLE 145 : Rules of Court, etc.
• (1)The Supreme Court can make rules for regulating the practice and procedure of the Court with approval of the president. It includes-
(a) rules as to the persons practising before the Court;(b) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the Court are to be entered;(c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;(d) rules as to the entertainment of appeals under sub-clause (c) of clause (1) of article 134;(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered;(f) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein;(g) rules as to the granting of bail;(h) rules as to stay of proceedings;(i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay;(j) rules as to the procedure for inquiries referred to in clause (1) of article 317.
• (2) Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.• (3) The minimum number] of Judges who are to sit for the purpose of deciding any case involving involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five, such a bench called Constitutional bench.• (4) No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under article 143 save in accordance with an opinion also delivered in open Court.• (5) Any Judgment, remark, opinion by the Supreme Court must passed in the Supreme Court.
ARTICLE 146 : Officers and servants and the expenses of the Supreme Court.
• (1) Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the Court as he may direct : Provided that the President may by rule require that in such cases as may be specified in the rule, no person not already attached to the Court shall be appointed to any office connected with the Court, save after consultation with the Union Public Service Commission.• (2) The Chief Justice of India has the power to change in conditions of service (increase or decrease tenures of officers and servants of the Supreme Court), salaries, allowances, leave or pensions, with the approval of the President.• (3) The administrative expenses of the Supreme Court, including all salaries, allowances and pensions shall be charged upon the Consolidated Fund of India.
ARTICLE 147 : Interpretation.
• In this Chapter and in Chapter V of Part VI, references to any substantial question of law as to the interpretation of the Government of India Act, 1935 and Indian Independence Act, 1947, or of any order made thereunder along with Indian Constitution.
Share
& Comment
Tweet