(Indian Polity) THE JUDICIARY - Supreme Court, Jurisdiction and Powers, Qualifications, Appointment, Tenure and Removal of Judges
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As we know, judiciary is one of the three organs of the government, others being the legislature and the executive. It interprets the law of the land, protects fundamental rights, settles the disputes and acts as guardian of the Constitution. It sees that the government of the day is run according to the provisions of the Constitution. India has a single unified and integrated judicial system and the Supreme Court is the highest court in India. This is unlike the dual court system in USA- the federal and state courts, adjudicating under separate Constitutions. A single, integrated judiciary represents a hierarchy of courts. The Supreme Court stands at the top of this single integrated judicial system with High Courts at the State level. Below the High Courts, there are several subordinate courts such as the District Courts which deal with civil cases and the Session Courts which decide criminal cases.
THE SUPREME COURT
Article 124 provides for the establishment and constitution of Supreme Court of India, which is the apex court of India. It was established on 28th January, 1950 i.e. two days after the commencement of the Constitution.
Article 124(1) – “There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a large number, of not more than seven other judges.”
The Parliament is competent to increase the number of judges if it deems necessary. To begin with, besides the Chief Justice, there were only 7 other judges. The Parliament has increased the number of judges from time to time. As in 2014, there are 29 judges besides the Chief Justice who is also called the Chief Justice of India. The sanctioned strength of the judges is 31, consisting of the Chief Justice and 30 other judges.
Appointment of Judges (Article 124)
The Chief Justice and other judges of the Supreme Court are appointed by the President of India. While appointing the Chief Justice, the President is constitutionally required to consult such other judges of the Supreme Court as he deems proper, but outgoing Chief Justice is always consulted. Normally, the senior most judge of the Supreme Court is appointed as the Chief Justice of India, although there is no constitutional requirement to do so. While appointing other judges, the President is bound to consult the Chief Justice and other senior judges of the Supreme Court and High Courts, if he deems proper.
Whenever there is vacancy or a likely vacancy in the Supreme Court, a collegiums comprising of the Chief Justice and four other senior most judges consider various names and recommend the names of the person to be appointed as judges of the Supreme Court. This system is based on a ruling of the Second (1993) and Third Judges Case (1998). Thus, while the Constitution still provides that the President is the appointing authority of the Supreme Court judges, the ruling of the Supreme Court, has since 1999, become virtually binding on the President. The power of selection of Judges has passed on to a group of Supreme Court judges, called the collegiums of the Court. The President now performs the formality of appointing the nominee of the Supreme Court, after the Law Ministry formally recommends these names to him. The Constitutional (121st Amendment) Bill, 201 seeks to replace the present collegiums system with a Judicial Appointment Commission (JAC). [Please see the collegiums System issue and JAC bill at the end of the chapter.]
Qualifications for appointment as a judges of the Supreme Court
A person to be qualified for appointment as a Judge of the Supreme Court must
1. be a citizen of India; and
2. has been a Judge of a High Court or two or more such courts in succession for at least 5 years; or
3. has been an Advocate of a High Court or one or more such courts in succession for at least 10 years; or
4. a distinguished jurist in the opinion of the President.
Tenure and Removal of the Judges of Supreme Court
A Judge of the Supreme Court vacates his office on attaining the age of 65 years or by resignation addressed to the President or by removal by the President upon a resolution passed by both Houses of Parliament. A judge of the Supreme Court does not hold office during the pleasure of the President. In exceptional cases, he may be removed before the age of retirement, according to the procedure laid down in the Constitution. He can be removed from office by an order of the president, passed after an address by each House of the Parliament supported by a majority of total membership of the House not less than two-third majority of the members of each House present and voting, passed in the same session, has been presented to the President. The ground for such removal can be ‘proved misbehavior or incapacity only. Further, Parliament under Article 124(5) may by law regulate the procedure for the removal of judges of the Supreme Court.
Accordingly, Parliament has passed Judges (Inquiry) Act, 1968. Under this Act, a motion seeking the removal of a Judge can be presented before either of the House of Parliament, whereupon following procedure is followed:
1. A motion addressed to the President signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha is delivered to the Speaker or the Chairman.
2. The motion is to be investigated by a Committee of three (2 Judges of the Supreme Court and a distinguished jurist).
3. If the Committee finds the Judges guilty of misbehavior or that he suffers from incapacity the motion, then the motion for removal of the judge together with the report of the Committee is taken up for-thirds of that House where the motion is pending.
4. if the motion is passed in each House by majority of the total membership of that House and by a majority of not less than-thirds of that House present and voting the address is presented to the President.
5. The Judge will be removed after the President gives his order for removal on the said address.
The Judge in question has the right to defend himself or through his counsel before the Judicial Committee. The Committee submits its report to the presiding officer of the House in which the motion has been introduced. Parliament may or may not act upon the report of the Judicial Committee. However, if the judicial committee failed to establish proof of misbehavior or incapacity, Parliament cannot take up the motion. If the motion is passed by the originating House with the required majority. Upon being presented to the President in the same session of Parliament in which the address has been passed, the President, shall pass an order for the removal of the Judge in question. Thus, it is quite clear from proceedings that Supreme Court judges enjoy security of tenure, and the executive cannot arbitrarily remove them. So far, proceedings for removal were initiated only in one case against a judge of the Supreme Court. But he/she could not be removed because in the Lok Sabha he Congress Party abstained from voting and so the motion could not be passed with requisite majority.
Salary: The salary of the Chief Justice of India has been increased (effective from September 1, 2008) from 33,000 to Rupees One lakh per month while the salary of other apex court judges has been increased from Rs. 30,000 to Rs. 90,000 per month.
Oath: A person appointed as a Supreme Court Judge, before entering upon his office takes in the form prescribed an Oath or Affirmation before the President or some person appointed by him (Article 124 (6) ).
Seat of the Supreme Court: The SC shall sit in Delhi or, in such other place or places, as the Chief Justice of Indian may, with the approval of the President, from time to time appoint.
Appointment of acting Chief Justice (Article 126): When the Office of the Chief Justice of India is vacant or when the Chief Justice, by reason of absence or otherwise, is unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
Appointment of Ad hoc Judges (Article 127): If at any time there is a lack of quorum of the Judges of the Supreme Court to hold or continue any session in the Court, the Chief Justice of India may with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.
Attendance of retired Judges at sittings of the Supreme Court (Article 128): The Chief Justice of India with the previous consent of the President may request a retired Judges of the Supreme Court or Federal Court or a retired Judge of a High Court who is duly qualified to be appointed as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court. Such a judge is entitled to such allowances as the President may determine.
Chief Justice of India
The office of Chief Justice of India is regarded as the highest custodian of the dignity of the judicial organ of the State. Though in the overall context he is regarded as co-equal to other Judges of the Supreme Court still his position in various matters is on a higher pedestal in the following contexts:
1. In the matter of appointment of Judges of the Supreme Court and the High Courts, it is obligatory for the President to consult the Chief Justice (Article 124)
2. He administers the oath of office to the President or any person acting as the President of the Republic. In the event of vacancy and non-availability of the Vice-President, in the officiating capacity the office of the President is conferred on him (Article 60).
3. In the event of a dispute between the Centre and a State with regard to the amount to be paid by the Centre to the State for having carried out any direction under Article 258, the matter shall be decided by an arbitrator appointed by the Chief Justice of India.
4. In the scenario of a default in regard to contribution in respect of the agreed expenses or pensions from the Consolidated Fund of India or of any State or States, the determination of the amount to be charged is done by an arbitrator to be appointed by the President. [Article 290(b)].
5. In the event of a reference being made by the President for inquiring into the charge of ‘misbehaviour’ labeled against a member of any ‘Public Service Commission’, the Chief Justice of India appoints a judge and submits a report to the President.
6. As per the proposition laid down by the Supreme Court, no appointment of a judge to the Supreme Court or the High Courts can be made, which is not in consonance with the opinion of the Chief Justice of India.
7. The consent of the Chief Justice is required before initiation of criminal proceedings against a judge of the Supreme Court or High Court.
8. When a resolution for the removal of a judges of the Supreme Court of High court is under consideration, the presiding officers of the House of the Parliament constitutes a Committee of three judges to investigate the alleged charges in consultation with the Chief Justice of India.
9. Under the rules of the Supreme Court, the Chief Justice allocates work among the judges of the Supreme Court.
10. The Chief Justice of India has to perform some other functions conferred on him by statutory arrangement, for example, he is a member of the Committee that recommends the name of the Chairman of the National Human Rights Commission.
Independence of Supreme Court Judges
The hallmark of any judiciary is impartiality. Unless the independence of the Judges is secured, impartiality of the judiciary cannot be assured. The independence of the Judges of the Supreme Court is sought to be secured by the Constitution in a number of ways:
1. The appointment of judges other than Chief Justice of India is made by the President in consultation with Chief Justice of India and four senior-most judges of the Supreme Court. This is to ensure that the appointment is made on the basis of merit only. The opinion of collegiums of judges is binding on the President. It has been made so in order to avoid any interference of political executive and to preserve the independence of judiciary.
2. The judges are allowed and expected to work without fear or favour with no interference of executive. Being a court of record, the high Court can utilize the powers of Contempt of Court and dissuade attempts to influence the judges.
3. The judges do not hold office during the pleasure of the President. They have been granted the security of tenure. Once appointed, a Judge of the Supreme Court can only be removed from office by the President on the basis of a resolution passed by both the Houses of Parliament with 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 proven misbehaviour or incapacity of the Judges in question.
4. After retirement, a person who held office as a Judge of the Supreme Court is prohibited from practicing or acting as a Judge in any court or before any authority in India. The exception is that the Chief Justice of India may appoint a retired Judge of the Supreme Court to act as an ad hoc Judge of the Supreme Court;
5. The salaries and allowances of the Judges of the Supreme Court and the administrative expenses of the Court are charged on the Consolidated fund of India and are not subject to the vote of the Parliament;
6. The Salaries and Allowances of the Judges of the Supreme Court cannot be varied to their disadvantage except during a financial emergency; and
7. The conduct of a Judge of the Supreme Court cannot be discussed in the Parliament, except on a resolution seeking the removal of a Judge.
Jurisdiction and Powers of Supreme Court
It is said that the Supreme Court of India has more powers than any other Supreme Court in any part of the world. It is a Federal and Constitutional court like the U.S. Supreme Court and it is the highest court of appeal in all civil and criminal matters like the House of Lords in England. It has many express and inherent powers conferred upon it by the Constitution and other legislature. Further, the legislatures of Union and States may confer more jurisdiction and powers on the Supreme Court (Art. 138 and 139). The jurisdiction and powers on the Supreme Court are mainly five-fold viz. Original, writ, Appellate, Advisory and Revisory jurisdictions.
I. Original Jurisdiction: Original Jurisdiction means the authority to hear and determine a case in the first instance. The original jurisdiction of the Supreme Court is of two types, Exclusive and Concurrent. It has an original, exclusive jurisdiction in any of the disputes involving
a. the Government of India and one or more States; or
b. between the Government of India and any State or States on one side and one or more States on the other; or
c. between two or more States
It acts, therefore, as a Federal Court, i.e.., the parties to the dispute should be units of a federation. No other court in India has the power to entertain such disputes. The original jurisdiction of the Supreme Court is thus federal in character. It also involves clarification as to whether a certain item is in the ‘residuary’ category or not under Schedule VII of the Constitution. As per Article 71 all disputes regarding the election of the President or Vice President are decided exclusively by the Supreme Court.
Exclusion of Original Jurisdiction: The Constitution excludes the exclusive original jurisdiction of the Supreme Court in disputes between the Centre and the State in the following matters:
a. As per Article 131, the Court’s jurisdiction does not extent to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument entered into or executed before 26th January, 1950 and which has continued in operation thereafter. The president of India has the authority to decide on such matters, through he may refer them to Supreme Court for a non- binding advice.
b. Under Article 262(2), Parliament may by law exclude Supreme Court’s jurisdiction in adjudication of any dispute or complaint with respect to use, distribution or control of the waters in any inter-State river or river valley.
II. Writ Jurisdiction: The Concurrent jurisdiction of the Supreme Court covers the authority to issue writs for the enforcement of Fundamental Rights under Article 32. Under this Article, every individual has the right to move the Supreme Court directly by appropriate proceedings for the enforcement of his Fundamental Rights. It is original jurisdiction because an individual has the right to directly approach the Supreme Court for the enforcement of his Fundamental Rights, without coming through a High Court by way of appeal. It is concurrent because High Courts are also empowered to issue writs for the enforcement of his Fundamental Rights. But the Supreme Court being the guardian and protector of Fundamental Rights under Article 32 cannot refuse for a petition for the enforcement of Fundamental Rights, while High Courts can refuse such a petition as their power to issue writs is discretionary under Article 226. The Supreme Court is empowered to issue writs including Habeas corpus, Mandamus, Prohibition, Certiorari and Quo Warranto for the enforcement of the Fundamental Rights of an aggrieved citizen. In addition to issuing these writs, the Supreme Court is empowered to issue appropriate directions and orders to the executive.
III. Appellate Jurisdiction: The Supreme Court is the highest court of appeal from all courts. Its appellate jurisdiction may be divided into,
i. cases involving interpretation of the
Constitution – civil, criminal or otherwise
ii. Civil cases, irrespective of any Constitutional question, and
iii. Criminal cases, irrespective of any Constitutional question, and
i. Constitutional – In constitutional matters, an appeal lies to the Supreme Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. If the High Court refuses to give the certificate, the Supreme Court may grant special leave for appeal under Article 136 if it is satisfied that the case does involve such a question.
ii. Civil Matters – Under Article 133, an appeal lies to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court if it certifies –
I. that the case involves a substantial question of interpretation of law or Constitution; and
II. that in the opinion of the High Court, the said question needs to be decided by the Supreme Court.
Thus, no appeal in a civil matter lies to the Supreme Court as a matter of right. It lies only when the High Court issues a certificate on the above two conditions being fulfilled. There is no requirement of minimum amount of civil suit for taking a civil appeal to the Supreme Court, according to the 30th Amendment Act of 1972.
iii. Criminal Matters – Article 134 of the Constitution provides the following provisions for an appeal to Supreme Court in criminal matter:
a. An appeal lies from any judgment, final order or sentence of a High Court in a criminal proceeding if the High Court has on appeal, reversed an order of acquittal of an accused person and sentenced him to death; or
b. If the High Court has withdrawn for trial before itself a case from a lower court and in such a trial sentenced the accused to death; or
c. If the High Court certifies that the case is a fit one for appeal to the Supreme Court.
d. The Parliament has further enacted the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, further authorizing the Supreme Court to hear appeals from the High Court in the following matters:
a. If the High Court has on appeal reversed an order of acquittal of an accused and sentenced him to imprisonment for life or for a period of not less than 10 years;
b. The High Court after withdrawal of a case from a lower court has sentenced the accused to imprisonment for life or for a period of not less than 10 years.
Appeal by Special Leave (Special Leave Petition) – The Supreme Court has been vested with wide discretionary powers in regards to special leave to appeal. The Supreme Court under Article 136 enjoys the power of granting special leave to appeal from any judgment, decree, order or sentence in any case or matter passed by any court or tribunal in the country the court martial. As is expected, such Leaves are to be granted sparingly.
IV. Advisory Jurisdiction: One salient feature of the Supreme Court of India is its consultative role. Article 143 of the Constitution vests the President the power to seek advice regarding
a. any question of law or fact of public importance, or
b. cases belonging to the disputes arising out of pre-constitution treaties and agreements which are excluded from its original jurisdiction.
In the first case, it is not compulsory for the Court to give its advice. The court may reserve its opinion in controversial political cases as in the Babri Masjid case. The Court refused to give its advice on the question whether a temple existed at the spot, where Babri Masjid was built at Ayodhya. The Presidential reference was also made in 2G spectrum case and mandatory auctioning of all natural resources. So far Supreme Court has tendered its advisory jurisdiction in fifteen Presidential references. In second type of cases, it is obligatory for the Court, under the Indian Constitution, to give its opinion to the President. In both the cases, the opinion expressed by the Supreme Court is only advisory in nature. Hence, it is not binding on the President. It is not a judicial pronouncement.
V. Revisory Jurisdiction: The Supreme Court under Article 137 is empowered to review any judgment or order made by it with a view to removing any mistake or error that might have crept in the judgment or order. This means that even though all the judgments and orders passed by the Supreme Court are binding on all the courts of India, they are not binding on the Supreme Court. One of the well-Known instance is Supreme Court revised its judgment in Keshavanand Bharati case (1973) from the earlier one in Golak Nath case (1967). The power of revising its own decisions along with the power of judicial power makes the Supreme Court really supreme.
VI. Supreme Court as a Court of Record: The Supreme Court is a Court of Record. Article 129 says: “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.” A court of Records has three meanings:
a. its records and judicial proceedings are of
evidentiary value before any court;
b. has the power to punish for its own contempt; and
c. has the power to determine its own jurisdiction.
Court of Record: It is a court whose acts and proceeding are enrolled for perpetual memory and testimony. It means its judgements and proceedings can be used as references, while deciding the matters of a case, in all the courts of India. These records are used with a high authority and their truth cannot be questioned. They are recognized as legal precedents and legal references. Similarly, Article 215 empowers the High Courts of the states to be courts of record.
Contempt of the Court: In accordance with the provisions of art. 129 and 215, the parliament passed The Contempt of Courts Act, 1971. A contempt of court includes both civil and criminal contempt. Civil contempt means willful disobedience to any judgment, decree, order, direction, or other processes of a court or willful breach of undertaking given to a court. Criminal contempt means the publication of any matter or doing of any act whatsoever which scandalizes or tends to scandalize or lower the authority of the court or tends to interfere with due course of any judicial proceedings or tends to obstruct the administration of justice in any manner. Willfulness is necessary to constitute contempt. Mere disobedience without a willful element is not sufficient to constitute contempt. Partial non-compliance of a court order also amounts to contempt. However, the following acts shall not amount to contempt of court:
1. innocent publication and distribution of matter;
2. fair and accurate report of judicial proceedings;
3. fair criticism of judicial act;
4. Complaint made in good faith of presiding officers of subordinate courts.
A contempt of court may be punished with simple imprisonment up to 6 month or with fine up to two thousand rupees, or with both; provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. The law of contempt of court is to keep the administration of justice pure and undefiled. While dignity of court is to be maintained at all costs, it is to be used sparingly. There are three different sorts of contempt of court viz., scandalizing the court, abusing the parties who are concerned in causes here and prejudicing the mankind against the persons before the case is heard. The Supreme Court’s power to punish for contempt is not limited to contempt of itself but extends to punishing contempt of all courts and tribunals throughout the country.
VII. Other powers of Supreme Court
1. The Supreme Court decides disputes regarding the election of the President and the Vice-President. In this regard, it has original exclusive jurisdiction.
2. The Supreme Court recommends the removal of members of UPSC to the President. On a reference of the president, it makes an inquiry into the conduct and behavior of the Chairman and other members of UPSC and, if found guilty, recommends their removal.
3. Supreme Court has power of judicial superintendence and control over all courts and tribunals functioning in the territory of India. (expect when the Parliament makes an exclusion such as water Tribunals)
4. The Supreme Court is authorized to make rules regarding the practice and procedure of the courts with the approval of the President.
5. The Supreme Court has complete administrative control over its own establishment and can appoint its officers and servants in consultation with UPSC and determine their conditions of service in consultation with the President.