Articles 124 to 147 in Part V of the Constitution deal with the Supreme Court. The Indian Constitution has established an integrated judicial system with the Supreme Court at the top and the high courts below it. Under a high court, there is a hierarchy of subordinate courts, that is, district courts and other lower courts. The Parliament has the power to regulate
the Supreme Court.
Organisation of the Supreme Court :
At present, the Supreme Court consists of 31 judges (one chief justice and thirty other judges). Originally, the strength of the Supreme Court was fixed at eight (one chief justice and seven other judges).
Appointment of Judges: The judges of the Supreme Court are appointed by the President. The chief justice is appointed by the President after consultation with such judges of the
Supreme Court and high courts as he deems necessary. The other judges are appoint ed byt he Presidentafter consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary.
Qualifications of Judges: A person to be appointed as a judge of the Supreme Court should have the following
He should be a citizen of India.
He should have been a judge of a High Court (or high courts in succession) for five years; or he should have been an advocate of a High Court (or High Courts in succession) for ten years; or he should be a distinguished jurist in the opinion of the president.
The Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court.
Tenure of Judges: The Constitution has not fixed the tenure of a judge of the Supreme Court. However, it makes the following three provisions in this regard:
- He holds office until he attains the age of 65 years.
- He can resign his office by writing to the president.
- He can be removed from his office by the President on the recommendation of the Parliament.
Removal of Judges: The Constitution seeks to ensure the independence of Supreme Court Judges in various ways. A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity. A person who has been a Judge of the Supreme Court is debarred from practising in any court of law or before any other authority in
Salaries and allowances: A judge of the Supreme Court gets a salary of Rs 1,00,000 per month and the use of an official residence free of rent. The salary of the Chief Justice is Rs 1,10,000 per month. (According to the Sixth Pay Commission Revision, 2008)
Jurisdiction and powers of the Supreme Court The Constitution has conferred a very extensive jurisdiction and vast powers on the Supreme Court. It is not only a federal court but also the final interpreter and guardian of the Constitution and guarantor of the fundamental rights of the citizens.
Original Jurisdiction :
As a federal court, the Supreme Court decides the disputes between different units of the Indian federation. It resolves the disputes between:
the Centre and one or more states; or
the Centre and any state or states on one side and one or more states on the other; or
between two or more states.
Writ Jurisdiction :
The Constitution has constituted the Supreme Court as the guarantor and defender of the fundamental rights of the citizens. 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. The Appellate Jurisdiction of the Supreme Court is threefold: (i)
Constitutional Matters, (ii) Civil Matters, (iii) Criminal Matters.
Appeal by Special Leave: 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 country (except military tribunal and court martial).
Advisory Jurisdiction :
The Constitution (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, sanad or other similar instruments.
In the first case, the Supreme Court may tender or may refuse to tender its opinion to the President. But, in the second case, the Supreme Court ‘must’ tender its opinion to the
Power of Judicial Review :
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, they can be declared as illegal, unconstitutional and inval id (null and voi d) by the Supreme Court. Consequently, they cannot be enforced by the Government. Judicial review is needed for the following reasons:
To uphold the principle of the supremacy of the Constitution.
To maintain federal equilibrium (balance between Centre and states).
To protect the fundamental rights of the citizens.
High Court :
The high court occupies the top position in the judicial administration of a state. Articles 214 to 231 in Part VI of the Constitution deal with the organisation, independence, jurisdiction, powers, procedures and so on of the high courts. The Seventh Amendment Act of 1956 authorised the Parliament to establish a common high court for two or more states or for two or more states and a union territory.
At present, there are 24 high courts in the country. Out of them, three are common high courts. Delhi is the only Union Territory that has a high court of its own (since 1966).
Three new High Courts for NE
The Centre has constituted three new High Courts in thenortheast — Meghalaya, Manipur and Tripura — taking the total number of High Courts in the country from 21 to 24.
According to Law Ministry sources, the strength of judges in each High Court will be as follows: Tripura 4 (including the Chief Justice), and Meghalaya and Manipur: three each (including the Chief Justice).
Organisation of High Court :
Every high court (whether exclusive or common) consists of a chief justice and such other judges as the President may from time to time deem necessary to appoint.
Appointment of Judges: The judges of a high court are appointed by the President. The chief justice is appointed by the President after consultation with the Chief Justice of India
and the governor of the state concerned. In case of a common high court for two or more states, the governors of all the states concerned are consulted by the President.
Qualifications of Judges: A person to be appointed as a judge of a High Court should have the following qualifications:
He should be a citizen of India.
He should have held a judicial office in the territory of India for ten years; or
He should have been an advocate of a high court (or high courts in succession) for ten years.
The Constitution has not prescribed a minimum age for appointment as a judge of a high court.
Oath or affirmation: A person appointed as a judge of a high court, before entering upon his office, has to make and subscribe an oath or affirmation before the governor of the state or some person appointed by him for this purpose.
Tenure of judges: The Constitution has not fixed the tenure of a judge of a high court. However, it makes the following four provisions in this regard:
He holds office until he attains the age of 65 years.
He can resign his office by writing to the President.
He can be removed from his office by the President on the recommendation of the Parliament.
Removal of judges: A judge of a high 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 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 of Parliament (i.e., 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 first-ever impeachment initiated against a judge, V Ramaswami, who retired as an SC judge in 1994, failed after the motion collapsed on the floor of the Lok Sabha in 1993.
On August 18, 2011, Justice Soumitra Sen become the first judge to be impeached by Rajya Sabha. The Upper House had approved the motion with an overwhelming majority of 189 votes in favour and 17 against.
The Lok Sabha dropped the impeachment proceedings against Justice Sen after he resigned just days after the Rajya Sabha impeached him.
Another such motion had been initiated against Justice PD Dinakaran but he resigned as the Chief Justice of the Sikkim High Court on July 19, 2011, a day ahead of the hearing of the three-member inquiry committee appointed by the Rajya Sabha Chairman.
Transfer of Judges: The President can transfer a judge from one high court to another after consulting the Chief Justice of India. On transfer, he is entitled to receive in addition
to his salary such compensatory allowance as may be determined by Parliament.
Subordinate Courts :
The state judiciary consists of a high court and a hierarchy of sub-ordinate courts, also known as lower courts.They function below and under the high court at district and lower levels.
Constitutional provisions :
Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive.
Appointment of district judges :
The appointment, posting and promotion of district judges in a state are made by the governor of the state in consultation with the high court. A person to be appointed as district judge should have the following qualifications:
He should not already be in the service of the Central or the state government.
He should have been an advocate or a pleader for seven years.
He should be recommended by the high court for appointment.
Appointment of other judges :
Appointment of persons (other than district judges) to the judicial service of a state are made by the governor of the state after consultation with the State Public Service Commission and the high court.
Control over subordinate courts :
The control over district courts and other subordinate courts including the posting, promotion and leave of persons belonging to the judicial service of a state and holding any post inferior to the post of district judge is vested in the high court.
The expression ‘district judge’ includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small-cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge.