Important Institutions

Introduction

• India is a federal State and has a single and unified judicial system with three tier structure, i.e. the Supreme Court, High Courts and Subordinate Courts.
• The Supreme Court of India is the highest judicial court and the final court of appeal under the Constitution of India, the highest constitutional court, with the power of judicial review.
• The motto of Supreme Court is “Yato Dharmastato Jayaḥ” which means where there is righteousness, there is victory.

Historical Significance of Supreme Court

• The promulgation of the Regulating Act of 1773 established the Supreme Court of Judicature at Calcutta as a Court of Record, with full power & authority.
  • It was established to hear and determine all complaints for any crimes and also to entertain, hear and determine any suits or actions in Bengal, Bihar and Orissa.
• The Supreme Courts at Madras and Bombay were established by King George – III in 1800 and 1823 respectively.
• The India High Courts Act, 1861 created High Courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency towns.
  • These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India under the Government of India Act, 1935.
• The Federal Court had jurisdiction to solve disputes between provinces and federal states and hear appeals against Judgements from High Courts.
• After India attained independence in 1947, the Constitution of India, 1950 came into being on 26 January 1950.
  • The Supreme Court of India also came into existence and its first sitting was held on 28 January 1950.
  • The law declared by the Supreme Court is binding on all Courts within the territory of India.

Constitution Provisions Related to Supreme Court

• The Indian constitution provides for a provision of Supreme Court under Chapter 6 (The Union Judiciary) of Part V (The Union).
• Articles 124 to 147 in Part V of the Constitution deal with the organisation, independence, jurisdiction, powers and procedures of the Supreme Court.
• The Indian constitution under Article 124(1) states that there shall be a Supreme Court of India constituting of a Chief Justice of India (CJI) and other Judges as parliament by law prescribes.
• The Jurisdiction of the Supreme Court of India can broadly be categorised into original jurisdiction, appellate jurisdiction and advisory jurisdiction.
  • However, there are other multiple powers of the Supreme Court.

Organization of Supreme Court

• Presently, the Supreme Court of India comprises the Chief Justice and 33 other Judges appointed by the President of India.
• Originally, the strength of the Supreme Court was fixed at eight (one Chief Justice and seven other judges). Parliament is authorized to increase the number.
• Initially, all the judges of the Supreme Court sat together to hear the cases presented before them.
  • As the number of cases and judges increased, they started to sit in smaller Benches of two (division) and three and then in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy.
• Seat of Supreme Court (Article 130)
  • Article 130 of the Constitution provides that the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may appoint, with the approval of the President, from time to time.
• Appointment of Judges (Article 124)
  • 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.
  • Under Clause (2) of the Article 124, every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal.
• The appointment of judges was a bone of contention in several cases in the series including First Judges Case - S. P. Gupta v. Union of India (1981), Second Judges Case - Advocates-on-Record Association v. Union of India (1993), Third Judges Case – Presidential Reference (1998), and Fourth Judges Case - Supreme Court Advocates-on-Record Association v. Union of India (2015).
• In the Third Judges case (1998), the Supreme 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 CJI 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 CJI without complying with the norms and requirements of the consultation process are not binding on the government.

What is Collegium System?

• The Collegium system was born through “three judges case” and it has been in practice since 1998. It is used for appointments and transfers of judges in High courts and Supreme Courts.
• There is no mention of the Collegium either in the original Constitution of India or in successive amendments.
• 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 NJAC as unconstitutional on the grounds that the involvement of Political Executive in judicial appointment was against the “Principles of Basic Structure”. i.e. the “Independence of Judiciary”.

Who Heads the Collegium System?

• The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court.
• An HC collegium is led by its Chief Justice and four other senior most judges of that court.
  • Names recommended for appointment by an HC collegium reaches the government only after approval by the CJI and the SC collegium.

Jurisdiction of Supreme Court

• Original & Writ Jurisdiction:
  • Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States.
    • This jurisdiction is used insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends.
  • Article 32 of the Constitution gives extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights.
  • 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.
• 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 (Article 132)
    • Appeals in civil matters (Article 133)
    • Appeals in criminal matters (Article 134)
    • Appeals by special leave (Article 136)
• Advisory Jurisdiction:
  • The Constitution under Article 143 authorizes 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, other similar instruments.

What is a Court of Record?

• As a Court of Record, the Supreme Court has two powers under Article 129:
  • 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 Rs. 2,000 or with both.

Other Powers of Supreme Court

• 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 under Article 13.
  • 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.
• The Supreme Court in the exercise of its jurisdiction under Article 142 may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
• The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court.
• International Commercial Arbitration can also be initiated in the Supreme Court under the Arbitration and Conciliation Act, 1996.
• Under Order XL of the Supreme Court Rules, 2013, the Supreme Court may review its judgment or order subject to some restrictions upon civil and criminal proceedings.
• Order XLVIII of the Supreme Court Rules, 2013 provides that the Supreme Court can reconsider its final judgment/order by way of a Curative Petition on limited grounds after the dismissal of Review Petition.
• Supreme Court has established a Supreme Court Legal Aid Committee to aid a person who belongs to certain specified sections of society.

Authorities in Supreme Court

• Judges:
  • A person appointed as a judge of the Supreme Court, before entering upon his office, has to make and subscribe to an oath or affirmation before the President, or some other person appointed by him for this purpose.
  • 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.
    • The address must be supported by a special majority of each House of Parliament (ie, 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:
    • No judge of the Supreme Court has been impeached so far. Impeachment motions of Justice V Ramaswami (1991–1993) and the Justice Dipak Misra (2017-18) were defeated in the Parliament.
• Supreme Court Registry:
  • The Registry of the Supreme Court is headed by the Secretary General who is assisted in his work by eleven Registrars, and twenty-five Additional Registrars etc.
  • Appointments of officers and servants of the Supreme Court Registry is covered under Article 146.
• Attorney General:
  • The Attorney General for India is appointed by the President of India under Article 76 of the Constitution and holds office during the pleasure of the President.
  • The Attorney General is assisted by a Solicitor General and twenty-three Additional Solicitors General.
• Advocates:
  • Senior Advocates: The Supreme Court of India or any High Court designate Senior Advocates.
  • Advocate-on-Record (AoR): Only AoRs are entitled to file any matter or document before the Supreme Court.
  • Other Advocates: These are Advocates whose names are registered in any State Bar Council maintained under the Advocates Act, 1961. They can appear and argue any matter on behalf of a party in the Supreme Court, but they are not entitled to file any document or matter before the Court.