Chapter 28: SUPREME COURT
Supreme Court is the
highest court of appeal. Constitution deals with
jurisdiction, independence, powers,
procedures and organization. Parliament can also
regulate them. It can increase
the number of judges. Parliament can’t curtail the
jurisdiction but expand it
Supreme Court has the power to punish for its
Appointment of judges
is done by the president. For the chief justice the
president consults as many
judges of the Supreme Court and high court as he may deem
necessary. For the
other judges he has to consult the chief justice of India
and as many other
judges of the S.C and H..C as he may deem necessary.
Conduct of the judges in
performance of their duties can’t be discussed in
parliament except when a
motion for their impeachment is being considered.
judges of the S.C:
should be a citizen of India
should fulfill at least one criteria from below:
He should be a judge of H.C in succession for 5 years
He should be an advocate of H.C in succession for 10 years
should be a distinguished jurist in the
opinion of the president.
Occupies office till
he attains the age of 65 yrs.
Can resign anytime in
writing to the president.
Can be removed by
president on recommendation of parliament.
of judges [Act of Parliament]:
A motion support
removal must be supported by 100 LS / 50 RS members. The
presiding officer may
or may not admit it. If admitted an inquiry committee
of Chief justice of India
or a Supreme Court judge; Chief justice of high court
and distinguished jurist
checks if judge is guilty; if the committee finds the
judge guilty then parliament
can pass a motion by special majority in both houses.
An address supported by
this motion must be presented to the president on the same
day. Then by a
presidential order the judge can be removed.
Acting Chief Justice or Adhoc S.C Judges
President can appoint
a S.C judge as acting chief justice if the Chief justice
is absent or can’t
perform his duties or the office is vacant.
The chief justice with
the previous consent of the president may appoint adhoc
judges to the Supreme
Court by nominating high court judges who are duly
qualified. The consultation
of the chief justice of the high court is also needed.
Also retired judges of
H.C or S.C can be appointed if their consent is there. But
he won’t be considered
as S.C judge.
Retired judges of S.C. are banned from
pleading or acting in any
court before any authority in India.
The C.J.I. can with the
approval of the president designate other seats of the
Jurisdiction of the Supreme Court
Original and exclusive
jurisdiction: Only the supreme court can adjudicate
matters of dispute between Centre
and one / more states on one hand and one / more states on
the other OR between
states OR between centre and one or more states. Election
disputes of president and vice president can be considered
by it only.
Writ jurisdiction: S.C
can issue writs for safeguarding or enforcing fundamental
rights if aggrieved
citizens approach it. The citizens can approach it
directly too. This
jurisdiction is concurrent to jurisdiction of H.C. However
the writ jurisdiction of H.C's are wider but unlike
Supreme courts they are discretionary powers.
jurisdiction: The final court of appeals means SC
can hear appeals of following
kinds Constitutional matters [H.C. certifies that an
interpretation to the
constitution is needed], Civil matters [H.C certifies that
of law is present], Criminal matters and Special leave. Special leave
jurisdiction is a discretionary
power that allows SC to admit an appeal on any judgment
of court or tribunal
except military tribunals.
Court of record: The
judgments of the S.C are legal precedents.
The S.C may give its opinion to the president
when asked about a question of law
or fact of public importance. S.C has to give its opinion
if asked about
disputes arising out of pre - constitution instruments.
Judicial review: The
final interpreter of the constitution. It can invalidate
laws or check their
constitutional validity. It is the guarantor of
fundamental rights and guardian of the constitution.
Principles of Natural Justice
- No one should be made a judge in his own cause.
- No one should be condemned unheard.
IT has already been pointed out, that notwithstanding the adoption of a
federal system, the Constitution of lndia has not
provided for a double system of Courts as in the
Under our Constitution there is a single
integrated system of Courts for the Union as well as
the States which administer both Union and State laws, and at the head of
the entire system stands the Supreme Court of India.
Below the Supreme
Court stand the High Courts of the different States and under each High
Court there is a hierarchy of other Courts which are referred to in the
Constitution as 'subordinate courts' i.e., courts subordinate to and under the
control of the High Court
The organisation of the subordinate judiciary varies slightly from State
to State, but the essential features may be explained with reference to the system obtaining in
the majority of the States.
The Supreme Court has issued a direction to the Union and the States
to constitute an All India Judicial Service and to bring about uniformity in
designation of officers both in criminal and civil side.
Concrete steps in this
directions are yet to be taken by the Government
At the lowest stage the two branches of justice,--civil and
The Union Courts and the
The hierarchy of Bench Courts, constituted under the Village Self-government Acts, Which constituted the lowest civil
and criminal Courts respectively, have been substituted by Panchayat Courts
set up under post-Constitution State legislation.
The Panchayat Courts also
function on two sides, civil and criminal, under various regional names, such
as the Nyaya Panchayat, Panchayat Adalat, Gram Kulchery , and the like.
some States, the Panchayat Courts, are the Criminal Courts of the lowest
jurisdiction, In respect of petty cases.
The Munsifs Courts are the next higher CiVil Courts, having jurisdiction
as determined by High Courts.
Above, the Munsiffs are Subordinate Judges who
have got unlimited jurisdiction over civil suits and hear first appeals
from the judgments of Munsiffs.
The District Judge hears first appeals from the
decisions of Subordinate Judges and also from the Munsiffs (unless they are
transferred to a Subordinate Judge) and himself possesses unlimited original jurisdiction, both civil and criminal.
Suits of a small value are tried by the
Provincial Small Causes Courts.
The District judge is the highest Judicial authority (civil and criminal)
in the district. It hears appeals from the decisions of the superior
Magistrates and also tries the more serious criminal cases, known as the
A Subordinate Judge Is sometimes vested also with the
powers of an Assistant Sessions judge, in which case he combines in his
hands both civil and criminal powers like a District Judge.
Since the enactment of the Criminal Procedure Code, 1973, the trial of
criminal cases is done exclusively by Judicial Magistrates except in jammu
& Kashmir and Nagaland, to which that Code does not apply.
Judicial Magistrate is the head of the Criminal Courts within the district
Calcutta and other 'metropolitan areas', there are Metropolitan Magistrates,
discharging judicial functions,
under the administrative control of the State High Court, are to be
distinguished from Executive Magistrates who discharge the executive
function of maintaining law and order under the control of the State
There are special arrangements for civil judicial administration in the
'Presidency towns', which are now called 'metropolitan areas'.
Side of the High Court at Calcutta tries the bigger civil suits arising within
the area of the Presidency town.
Suits of lower value within the City are tried
by the City Civil Court and the Presidency Small Causes Court, But the
Original Criminal Jurisdiction of all High Courts, including Calcutta, has
been taken away by the Criminal Procedure Code, 1973.
The High Court Is the supreme judicial tribunal of the State, having
both Original and Appellate jurisdiction.
It exercises appellate jurisdiction
over the District and Sessions judge, the Presidency Magistrates and the
Original Side of the High Court itself (where the Original Side still
There is a High Court for each of the States, except Manipur,
Meghalaya, Tripura and Nagaland which have the High Court of Assam (at
Gauhati) as their common High Court; and Haryana, which has a common
High Court (at Chandigarh) with Punjab.
The Bombay High Court is
common to Maharashtra and Goa.
As regards the Judiciary in Union Territories, see under 'Union Territories'.
The Supreme Court has appellate Jurisdiction over the High Courts
and is the highest tribunal of the land.
The Supreme Court also possesses
original and advisory Jurisdictions.
PARLIAMENT has the power to make laws regulating the constitution,
Constitution of the Organisation, jurisdiction and powers of the Supreme Court.
Subject to such legislation, the Supreme Court
consists of the Chief Justice of India and not more
than twenty five other Judges
Besides, the Chief Justice of India has the power, with the previous
consent of the President, to request a retired Supreme Court Judge to act as
a Judge of the Supreme Court for a temporary period. Similarly. a High
Court Judge may be appointed ad hoc Judge of the Supreme Court for a
temporary period if there is a lack of quorun of the permanent Judges
A nine-judge Bench of the
Supreme Court has laid down that the seniormost judge of the Supreme
Court considered fit to hold the office should be appointed to the office of
Chief justice of India.
And in the case of appointment of other Judges of
the Supreme Court, consultation with the Chief justice of India, in addition
co the above, is obligatory
Consultation would generally mean
The above provision, thus, modifies the mode of appointment
of Judges by the Executive-by providing that the Executive should consult
members of the Judiclary itself, who are well-quallfled to give their opinion
in this matter.
In a reference" (not as a review or reconsideration of the Second Judges
case) made by the President under Art. 143 relating to the consultation
between the Chief JUstice of India and his brother Judges In matters of
appointment of the Supreme Court Judges and the referance of seniority In
making such appointments, the nine-Judge Bench opined:
The opinion of the CJI, having primacy in the consultative process
and reflecting the opinion of the judiciary, has to be formed on the basis of
consultation with the collegium, comprising of CJI and the four senior
most Judges of the Supreme Court.
The Judge, who is to succeed the CJI
should also be included, If he is not one of the four senior most Judges.
Their views should be obtained in writing.
Views of the senior most Judges of the Supreme Court, who hail
from the High Courts where the persons to be recommended are
functioning as Judges, if not the part of the collegium, must be obtained in
The recommendation of the collegium alongwith the views of its
members and that of the senior most Judges of the Supreme Court who hail
from the High Courts where the persons to be recommended are
functioning as Judges should be conveyed by the Chief Justice of India to
the Govt of India.
The substance of the views of the others consulted by the Chief
Justice of India or on his behalf, particularly those of non Judges (Members
of the Bar) should he stated in the memorandum and be conveyed to the
Govt. of India.
Normally. the collegium should make its recommendation on the
basis of consensus but in case of difference of opinion no one would be
appointed, if the CJ1 dissents.
If two or more members of the collegium dissent, CJI should not
persist with the recommendation.
In case of non-appointment of the person recommended, the
materials and information conveyed by the Govt. of India, must be placed
before the original collegium or the reconstituted one, if so, to consider
whether the recommendation should be Withdrawn or reiterated.
It is only if
it unanimously reiterated that the appointment must be made.
The CJI may, in his discretion, bring to the knowledge of the person
recommended the reasons disclosed by the Govt. of India for his non appointment
and ask for his response thereto, which, if made. be considered
by the collegium before withdrawing or reitirating the recommendation.
Merit should be predominant consideration though inter-seniority
among the Judges in their High Courts and their combined seniority on all
India basis should be given weight.
Cogent and good reasons should be recorded for recommending a
person of outstanding merit regardless of his lower seniority.
For recommending one of several persons of more or less equal
degree of merit, the factor of the High Courts not represented on the
Supreme Court, may be Considered.
The Judge passed over can be reconsidered unless for strong
reasons, it is recorded that he be never appointed.
The recommendations made by the CJI without complying with the
norms and requirements, are not binding on the Govt. of India.
Though the appointing authority is the
President, acting with the advice of his Council of Ministers. the appointment of Supreme Court Judge has been lifted from the realm of pure
politics by requiring the President to consult the Chief Justice of India in the
By laying down that a Judge of the Supreme Court shall not be
removed by the President, except on a joint address by both Houses of
Parliament (supported by a majority of the total membership and a majority
of not less than two-thirds of the members present and voting, in each
House), on ground of proved misbehaviour or Incapacity of the Judge in
This provision is similar to the rule prevailing in England since the Act
of Settlement., 1701, to the effect that though Judges of the Superior Courts
are appointed by the Crown, they do not hold office during his pleasure, but
hold their office 'on good behaviour' and the Crown may remove them only
upon a joint address from both Houses of Parliament.
By fixing the salaries of the Judges by the Constitution and
providing that though the allowances, leave and pension may be determined
by law made by Parliament, these shall not be varied to the disadvantage of
a Judge during his term of office. In other words, he will not be affected
adversely by any changes made by law since his appointment
But it will be competent for the President to override this guarantee,
under a Proclamation of 'Financial Emergency'
By providlng that the administrative expenses of the Supreme
Court, the salaries and allowances, etc., of the Judges as well as of the staff of
the Supreme Court shall be 'charged upon the Consolidated Fund of India';
i.e., shall not be subject to vote in Parliament
By forbidding the discussion of the conduct of a Judge of the
Supreme Court (or of a High Court) in Parliament, except upon a motion
for an address to the President for the removal of the Judge
By laying down that after retirement, a Judge of the Supreme Court
shall not plead or act in any Court or before any authority within the
territory of India
It has been rightly said that the jurisdiction and powers of our Supreme
Position of the Court are in their nature and extent wider than those
Supreme Court exercised by the highest Court of any other country.
It is at once a federal Court, a Court of appeal and a guardian of the Constitution, and the law declared by
it, in the exercise of any Its jurisdictions under the
Constitution, is binding On all other Courts within the territory of India
Firstly. the American Supreme Court's appellate jurisdiction is
confined to cases arising out of the federal relationship or those relating to
the constitutional validity of laws and treaties. But our Supreme Court is not
only a federal court and a guardian of the Constitution, but also the highest
court of appeal in the land. relating to civil and criminal cases, apart from cases relating to the interpretation of the Constitution.
Secondly. our Supreme Court has an extraordinary power to entertain
appeal, without any limitation upon its discretion, from the decision. not only
of any court but also of any tribunal within the territory of India [Art. 136J.
No such power belongs to the American Supreme Court.
Thirdly, while the American Supreme Court has denied to itself any power to advise the Government and confined itself only to the
determination of actual controversies between parties to a litigation, our
Supreme Court Is vested by the Constitution itself with the power to deliver
advisory opinion on any question of fact or law that may be referred to it by
Though our federation is not in the nature of a treaty or compact
between the component units, there is, nevertheless, a division of legislative
as well as administrative powers between the Union and the States.
Article 131 of our Constitution, therefore, vests the Supreme Court with
original and exclusive Jurisdiction to determine justiciable disputes between
the Union and the States or between the States.
Like the House of Lords in England, the Supreme Court of India is the
final appellate tribunal of the land, and in some respects, the jurisdiction of
the Supreme Court is even wider than that of the House of Lords.
As regards criminal appeals, an appeal lies to the House of Lords only if the Attomey-General certifies that the
decision of the Court of Criminal Appeal involves a
point of law of exceptional public importance and that it is desirable in the
public Interest tbat a further appeal should be brought.
But in cases specified
by our Constitution (death sentences), an
appeal will lie to the Supreme Court as of right
As to appeals from High Courts in civil cases, however, the position has
been altered by an amendment of Art 133(1) by the Constitution (30th Amendment) Act, 1972, which has likened the law to that in England.
appeals from the decisions of the Court of Appeal lie to the House of Lords
only if the Court of Appeal or the House of Lords grants leave to appeal.
Under Art. 133(1) of our Constitution as it originally stood, an appeal to the
Supreme Court lay as of right in cases of higher value [as certified by the
But this value test and the category of appeal as of right has
been abolished by the amendment of 1972, under which appeal from the
decision of a High Court in a civil matter will lie to the Supreme Court only
if the High Court certifies that the case involves 'a substantial question of law
of general importance' and that 'the said question needs to be decided by
the Supreme Court'.
But the right of the Supreme Court to entertain appeal, by special leave,
in any cause or matter determined by any Court or tribunal in India, save
military tribunals, is unlimited .
It is for the
Courts to decide whether any of the constitutional limitations has been
transgressed or not, because the Constitution is the organic law subject to
which ordinary laws are made by the Legislature which itself is set up by the
There are provisions for reference to this Court under Art. 317(1) of
the Constitution, s. 257 of the Income-tax Act, 1961,
Jurisdictiou. s. 7(2) of the Monopolies and Restrictive Trade
Practices Act, 1969, s. 130A of the Customs Act, 1962
and s. 35H of the Central Excise and Salt Act, 1944.
Appeals also lie to Supreme Court under the Representation of the
People Act, 1951; Monopolies and Restrictive Trade Practices Act, 1969;
Advocates Act, 1961; Contempt of Courts Act, 1971; Customs Act, 1962;
Central Excise and Salt Act, 1944; Terrorist Affected Areas (Special Courts)
Act, 1984·;Terrorist and Disruptive Activities (Prevennon) Act, 1985; Trial of
Offences relating to Transactions in Securities Act, 1992 and Consumer
Protection AcL, 1986.
Election Petitions under Part III of the Presidential and Vice-
Presidential Elections Act, 1952 are also filed directly in the Supreme Court.
Art. 323A-323B. The intent of these two new Articles was to take
away the jurisdiction of the Supreme Court under Art. 32 over orders and
decisions of Adrrunlstrauve Tribunals. These Articles could, however, be
Implemented only by legislation which Mrs. Gandhi's first Government had
no time to undertake.
But subsequently, the position turned out to be otherwise as the
Supreme Court declared the Articles 323 A, 01. 2(d) and 323-B, CI. 3(d) and
also the "exclusion of jurisdiction" clauses in all the legislations enacted In
pursuance of these Articles, unconstitutional to the extent they excluded the
jurisdiction of the High Courts and the Supreme Court under Articles
226 - 227 and 32
Art. 368(4)-(5). These two clauses were inserted in Art. 368 with
a view lo preventing the Supreme Court from invalidating any Constitution
Amendment Act on the theory of 'basic features of Constitution' or anything
of that nature.
Curiously, however, these Clauses have been emasculated by the
Supreme Court Itself, striking them down on the ground that they are
violative of two 'basic features' of the Constitution-(a) the limited nature of
the amending power under Art 368, and (b) judicial review, -in the
Minerva Mills case.
Q. In India, Judicial Review implies
the power of the Judiciary to pronounce upon the constitutionality of laws and executive orders
the power of the Judiciary to question the wisdom of the laws enacted by the Legislatures
the power of the Judiciary to review all the legislative enactments before they are assented to by the President.
the power of the Judiciary to review its own judgements given earlier in similar or different cases.
Ans . A
Judicial review is the power of SC to examine the Constitutionality of legislative enactments and executive orders of both union and state Government
Q.Who/Which of the following is the Custodian of the Constitution of India? (UPSC CSAT 2015)
The President of India
The Prime Minister of India
The Lok Sabha Secretariat
The Supreme Court of India
Ans . A
President of India takes the oath to “PRESERVE, PROTECT and DEFEND” the constitution of India and laws. Hence, he is the custodian of the constitution of India.
On the other hand, Supreme Court judges take the oath to “UPHOLD the constitution” and the laws. Hence, it is the Guardian of the constitution of India.
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