JUDICIARY: UNION & STATE
Nature of Judicial Power
In order to maintain the supremacy of constitution, there must be an independent and impartial authority to decide disputes between units of federation. The Supreme Court under our constitution is such arbitrator. It is the apex court – the final interpreter and guardian of constitution, which keep the democratic structure intact, by preventing the arbitrary use of governmental authority and safeguarding the rights of citizens. It is the guardian of fundamental rights and defender of the fundamentals of ‘rule of law.’ it is the final court of appeal in all civil, criminal and other matters and thus helps in maintaining a uniformity of law throughout the country.
Adjudication by the administrative bodies has, in recent times, emerged as an alternative to traditional courts. The functioning of such adjudicating bodies is largely determined by the executive.
Composition of Supreme Courts
The Supreme Court of India shall consist of the chief justice and not more than 30 other judges (the number is prescribed by law made by parliament). Thus, the total number of judges in the Supreme Court at present is 31. The strength of the Supreme Court was originally fixed at one chief justice and 7 other judges by virtue of article 124(1). But parliament was given power to increase the number of judges. It has been held that the number of judges should commensurate to the amount of work, otherwise, “the judiciary cannot perform its constitutional obligation.”
Composition of High Courts
Each High Court consists of a Chief Justice and such other judges as the president may appoint from time to time (article 216). Thus, the constitution does not fix any maximum number of judges of a high court. There are over 750 judges in 21 high courts.
The Supreme Court of India is in New Delhi. However, the court may hold its sitting anywhere in India. The decision in this regard is taken by the chief justice in consultation with the president of India (Article 130). The constitution provides for a high court for each state. Parliament may, however establish by law a common high court for two or more states or for two or more states and a union territory (Articles 214 and 230-231). The national capital territory of Delhi has a high court of its own.
- For appointment as a judge of the Supreme Court,
(1) a person must be a citizen of India;
(2) must be, at least, five years in succession a judge of the high court or of two or more high courts in succession, or an advocate of a high court or of two or more high courts for 10 years in succession, or he must be in the opinion of the president a distinguished jurist [article. 124(3)].
- To be appointed a high court judge, a person must be a citizen of India with ten years’ service in a judicial office or ten years’ experience as a high court advocate (article. 217).
Age of Judge –
- The age of a judge of the Supreme Court shall be determined by such authority and in such manner as parliament may by law provide [article. 124(2A)].
- If any question arises as to the age of a judge of a high court, the question shall be decided by the president after consultation with the chief justice of India and the decision of the president shall be final [article217(3)]. Articles 124(2a) and 217(3) have to be read harmoniously. Once the issue of the date of birth of judge, while a judge of a high court, is settled by the president under article 217(3), it should not be questioned on the elevation of the judge, as a judge of the supreme court. it has been held that the power to determine the age of a judge is a judicial power.
Appointment of judges –
- Every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the president may deem necessary for the purpose [article. 124(2)]. Provided that in the case of appointment of a judge other than the chief justice, the Chief Justice of India shall always be consulted.
- Article 217(1) provides that every judge of a high court shall be appointed by the president after consultation with the chief justice of India, the state governor, and the chief justice of the high court.
Every person appointed to be a judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the president, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the third schedule [article. 124(6)]. Article 219 similarly provides for oath or affirmation by a high court judge before the governor of the state.
Appointment of the Judges
The procedure of appointment of the Chief Justice and other judges has created a lot of controversy because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed by the president after consulting with the judges of the Supreme Court and the high courts. Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the executive from having complete discretionary powers in the appointment of the judges.
Until 1973, the senior most judge of the Supreme Court was appointed as the Chief Justice. However, this convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word “consult” does not mean that the president is bound by the advice. He is free to make his own decision.
In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer of a Judge from one high court to another under art 222, SC held that the President has the right to differ from the advice provided by the consultants.
Judges Transfer Case 1
In the case of S P Gupta vs Union of India, 1982 SC unanimously agreed with the meaning of the word ‘consultation’ as determined in the Sankalchand’s case. It further held that the only ground on which the decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration. In doing so, it substantially reduced its own power in appointing the judges and gave control to the executive.
Judges Transfer Case 2
This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR 1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of high courts and supreme court, the CJ should have the primacy and the appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior most judges and the recommendation must be made only if there is a consensus among them.
Judges Transfer Case 3
A controversy arose again when the CJ recommended the names for appointment without consulting with other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999) and a 9 member bench held that an advice given by the CJ without proper consultation with other judges is not binding on the govt.
As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC and High Courts are fairly free from executive control. This is an important factor that ensure the independence of the judiciary.
Tenure of Office –
A Supreme Court judge shall hold office until he attains the age of 65 years [article. 124(2)]. The retirement age in case of a high court judge is 62 years.
A supreme/high court judge may, by writing under his hand addressed to the president, resign his office. He may be removed from his office in the manner provided in article 124(4) [article. 124(2)/217(1)].
Restriction on practice after being a Permanent Judge
A retired judge of the Supreme Court is prohibited from pleading (practicing law) in any court or before any authority (article 124). After being a permanent judge of a high court, a person shall not plead in any court in India except the Supreme Court or other high courts (article 220).
Transfer of High Court Judges
The office of a high court judge shall be vacated by his being appointed by the president to be a judge of the supreme court or by his being transferred by the president to any other high court within the territory of India [article. 217(1)]. The president may, after consultation with the chief justice of India, transfer a judge from one high court to any other high court [article. 222(1)].
Other provisions: Supreme/High Court Judges
(1) Appointment of acting Chief Justice of India/High Courts – When the office of the chief justice is vacant, or when he is absent or otherwise, unable to perform the duties of his office, a judge of the Supreme Court may be appointed temporarily as acting chief justice of India by the president (article 126). The president may appoint an acting chief justice for a high court (article 223). Normally, the senior-most judge is appointed as acting chief justice.
(2) Appointment of ad hoc judges – If there is want of quorum in the supreme 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, appoint a regular judge of a high court (having qualification to be appointed as a judge of the supreme court) as an ad hoc judge (article 127). Such judge shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a judge of the Supreme Court.
Also, in case of need, the president may appoint additional judges of the high court for a period not exceeding two years. ‘Additional’ judges are appointed by the president if it appears to him that by reason of any temporary increase in the business of the high court or by reason of arrears of work therein, the number of judges of that court for the time being increased [article 224(1)]. No person appointed as an additional or acting judge of a high court shall hold office after attaining the age of 62 years [art. 224(3)].
(3) Attendance of retired judges at sittings of the Supreme Court/ High Courts – The chief justice of India may also invite, with the previous consent of the president and of the person to be appointed, a retired judge of the Supreme/ High court, to sit and act as a judge of the supreme court for such period as he deems necessary (article 128). Such judge shall have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a judge of that court. The chief justice of a high court may, with the consent of the president, appoint a retired judge to sit and act as a judge of that high court (article 224A).
Removal of Judges: Disciplining the judges
A judge of Supreme/ High Court can only be removed for proved misbehavior or incapacity, and even so, a difficult procedure of impeachment is necessary (articles 124/218): a judge can only be removed by a president’s order passed after an address in each house of parliament. Such address must be 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. it must be presented to the president in the same session. The constitution-makers adopted this method of removal by impeachment by parliament from the UK and the US parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior .or incapacity of a judge under clause (4) [article 124(5)].
In pursuance of clause (5), parliament passed the judges (inquiry) act, 1968, the judges (inquiry) rules, 1969 lay down the details of procedure for investigation and inquiry into the allegations against a judge. If not less than 100 members of Loksabha or 50 members of Rajyasabha give notice of a motion for the removal of a judge on grounds of some definite allegations of misbehavior or incapacity, the speaker/chairman of loksabha/rajyasabha, would decide the admissibility of the motion. If the motion is admitted, a committee would be appointed for holding the necessary investigations. The judge concerned would be provided with reasonable opportunity for defence. If the committee does not found him guilty, the whole matter would be dropped; otherwise, if found guilty, the house would proceed to consider the motion. If the motion was passed by each house, misbehavior or incapacity of the judge shall be deemed to have been proved and an address shall be presented to the president during the same session of parliament for the removal of the judge.
Powers and Jurisdiction of the Supreme Court
- A Court of Record: Article 129 provides that the Supreme Court shall be a ‘court of record’ and shall have all the powers of such a court. Being the highest court of the land, its proceedings, acts and decisions are kept in record for perpetual memory and for presentation as evidence, when need be, in support of what the law is. Being a court of record implies that its records can be used as evidence and cannot be questioned for their authenticity in any court.
Court of record also means that it can punish for its own contempt. But this is a summary power, used sparingly and under pressing circumstances where the public interest demands. It does not inhibit genuine and well-intentioned criticism of court and its functioning. Fair and reasonable criticism of a judicial act in the interest of public good does not constitute contempt.
- Original Jurisdiction: – It means the power to hear and determine a dispute in the first instance. The Supreme Court has been given ‘exclusive’ original jurisdiction which extends to disputes
- between the government of India and one or more states
- between the government of India and one or more states on one side and one or more states on the other,
- Between two or more states. Also, the dispute must involve any question on which the existence or extent of a legal right depends (article. 131).
However, this jurisdiction shall not extend to a dispute arising out of a treaty, agreement, covenant, etc. which is in operation or which provides that the said jurisdiction shall not extend to such a dispute (article 131, proviso).
Article 131 opens with the subjective clause i.e. “subject to the provisions of this constitution.” therefore, the jurisdiction conferred by article 131 is to be read with subject to other provisions of the constitution. The jurisdiction of the Supreme Court may also be excluded in certain other matters by parliamentary law, example inter-state water (river) disputes (article 262), matters referred to the finance commission (article. 280) and adjustment of certain expenses and pensions between the union and the states (article. 290). The court in its original jurisdiction cannot entertain any suits brought by private individuals against the government of India except in cases of violation of the fundamental rights of individual. Recovery of damages against the government of India cannot be claimed by a state before the Supreme Court under article 131.
Article 71 provides another instance of “original exclusive jurisdiction” conferred on the Supreme Court. It lay down: “all doubts and disputes arising out of or in connection with the election of the president or vice-president of India shall be inquired into and decided by the Supreme Court whose decision shall be final.”
The original jurisdiction of the supreme court also extends to cases of violation of the fundamental rights of individuals and the court can issue several writs for the enforcement of these rights (article. 32); a similar power has been entrusted to the high court (article. 226). It is a unique feature of our constitution that in principle, any individual can straightaway approach the highest court in case of violation of his fundamental rights.
- Appellate Jurisdiction: The Supreme Court is the final appellate tribunal of the land. The appellate jurisdiction of the Supreme Court extends to civil, criminal and constitutional matters (articles. 132-135).
- Under article 132, an appeal will lie to the Supreme Court from any judgment, decree or final order of a high court in the territory of India, whether in a civil, criminal or other proceeding, if The high court certifies under article 134A that the case involves ‘a substantial question of law as to the interpretation of the constitution.’ where such a certificate is given, any party in the case may appeal to the supreme court on the ground that any such question as aforesaid has been wrongly decided.
- In a ‘civil’ matter, an appeal lies to the Supreme Court from any judgment, decree or final order of a high court if the high court certifies under art 134a that ‘a substantial question of law of general importance’ is involved and in the opinion of the high court the matter needs to be decided by the Supreme Court (article 133). Thus, article 133 requires from the high court – both viz. a ‘certificate of fitness for appeal to the supreme court’ as well as the ‘opinion of the high court that the case needs to be decided by the apex court.’
- In ‘criminal’ cases, an appeal to the supreme court shall lie from any judgment, decree or final order of a high court if the high court
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death, or
(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; and
(c) in some other cases [article. 134(1)}.
In the first two cases, an appeal will lie to the Supreme Court without the certificate of the high court; the accused person may go for appeal to the Supreme Court in his own right.
- Under article 134(l) (c) an appeal against a decision of a high court can be filed before the Supreme Court if the high court certifies under article 134A the case is a fit one for appeal to the Supreme Court. But the proviso to sub-clause (c) lays down that such appeals shall be subject to rules made by the supreme court (under article 145) and to such other conditions as the high court may decide.
In State of Gujarat verses SA Sheikh, the apex court observed: it is the settled practice of this court that if on the face of it the court is satisfied that the high court has not properly exercised the discretion under article 134(l) (c), the matter may be either remitted or the apex court may exercise that discretion itself or treat the appeal as one under article 136.
The ‘grant of the certificate’ by the high court for appeals in criminal cases to the supreme court depends on an evaluation whether the case involves a substantial question of law and its interpretation on which the supreme court is urgently required to pronounce its opinion and whether it would result in grave injustice to the accused. Thus, a certificate cannot be granted by the high court on mere question of fact.
The certificate under Article 134A may be granted by the high court on its own motion or on the oral application of the aggrieved party. It is obligatory on the high court to determine the question of granting certificate immediately on the passing of the judgment, decree, final order or sentence.
- Under article 135, it is laid down that the federal courts (in existence before the commencement of the constitution) jurisdiction (under any existing law) is to be exercised by the Supreme Court. The Supreme Court shall exercise such jurisdiction if articles 133 and 134 do not apply to the case and the case was one in which the federal court had the jurisdiction to entertain appeals.
- Appeal by Special Leave: Under article 136, the Supreme Court, at its discretion, may grant special leave to appeal from “any judgment, decree, determination, sentence or order, in any cause or matter passed or made by any court or tribunal in the territory of India.” this is called ‘special leave petition’ (SLP).
These powers of the Supreme Court to grant special leave to appeal are far wider than the high courts’ power to grant certificates to appeal to the Supreme Court under article 134. The Supreme Court can grant special leave against judgments of any court or tribunal in the territory, except the military courts, and in any type of cases viz. civil, criminal or revenue.
But, the Supreme Court has itself said that it will grant special leave to appeal only in cases where there has been “gross miscarriage of justice” (for example disregard of the forms of legal process or the violation of principles of natural justice) or where the high court or tribunal is found to have been wrong in law. If the judgment of the court below shakes the conscience and shocks the sense of justice, the Supreme Court shall interfere. Article 136 confers a wide discretionary power on the Supreme Court. It is in the nature of a residuary or reserve power and therefore, it cannot be defined exhaustively. it is in the nature of special power, exercisable outside the purview of ordinary law. It, however, has to be exercised sparingly. the constitution for the best of reasons does not choose to fetter or circumscribe the powers, exercisable under this article, in any way. it is an extraordinary jurisdiction vested by the constitution in the apex court with implicit trust and faith, and, extraordinary care and caution has to be observed in the exercise of this jurisdiction.
In Jyotendra Singhji verses ST Tripathi , it was held that a party cannot gain advantage by approaching the Supreme Court directly under article 136 instead of approaching the high court under article 226. This is not a limitation inherent in article 136, it is a limitation which the Supreme Court imposes itself.
In appeal under article 136, the Supreme Court does not interfere with the concurrent findings of fact unless it is established that the finding is based on no evidence or that the finding is perverse or is based on inadmissible evidence or the vital piece of evidence has been overlooked. in appeal under article 136, the Supreme Court does not allow the appellant to raise the new plea for the first time.
In Ramakant Rai verses Madan Rai , the supreme court held that where an accused is acquitted by the high court and no appeal against the acquittal is filed by the state, a ‘private party’ can file appeal under article 136 against the acquittal order of the high court. The appellate power under article 136 is not to be confused with ordinary appellate power exercised by appellate courts or tribunals.
It may be noted that the jurisdiction under article 136 cannot be limited or taken away by any legislation subordinate to the constitution. It may also be noted that an “order” against which appeal is maintainable under article 136 must be a judicial or quasi-judicial order (and not a purely executive or administrative order) and must be passed by a court or tribunal in the territory of India.
Distinction between article 136 and articles 132-135
- The Supreme Court power under article 136 is not fettered with any of the limitations contained in articles 132-135. Under the latter, appeal can be entertained only against the ‘final order’, but under article. 136, the word ‘order’ is not qualified by adjective ‘final’ and hence the court can grant special leave to appeal even from ‘interlocutory orders.’
- Under articles. 132-134, appeal lies only against the final order of the ‘high court’; under article 136, the supreme court can grant leave for appeal from ‘any court or tribunal’, even without following the usual procedure of filing appeal in the high court or even where the law applicable to the dispute does not make provision for such an appeal.
- Under articles 132-134, appeal lies only against ‘any judgment, decree, determination, sentence or order’, but under article 136, an appeal may lie against ‘any cause or matter.
- Review Jurisdiction: Article 137 provides for the Supreme Court having the power to review its own judgments and orders. However, this is subject to any law passed by the parliament and any rules made by the apex court under article. 145.
Thus, the power of review is not an inherent power. It must be .conferred by law either specifically or by necessary implication. As per the rules, the review petition has to be moved before the same bench which had passed the judgment sought to be reviewed. The rules provide that the court may review its judgments on the grounds mentioned in Order 47, Rule 1, Civil Procedure Code, 1908. These grounds are:
– discovery of new and important matter or evidence;
– any mistake or error apparent on the face of the record; and
– any other sufficient reason. in a review petition, thus, an error of substantial nature only can be reviewed.
- Advisory Jurisdiction: Article 143 confers upon the Supreme Court advisory jurisdiction. The president may seek the opinion of the Supreme Court on any question of law or fact of public importance (which has arisen or is likely to arise) on which he thinks it expedient to obtain such an opinion. on such reference from the president, the supreme court, after giving it such hearing as it deems fit, may report to the president its opinion thereon [article 143(1)].
The power vested in the president under article 143 is purely discretionary and no direction can be issued by the court for the exercise of the power by the president. It is for the president to decide what questions should be referred to the Supreme Court. If the president does not entertain any serious doubt on the matter, it is not for the party to say that doubts arise out of them.
The opinion is only advisory, which the president is free to follow or not to follow. The first such reference was made in the re Delhi laws case. It may be noted that there is no provision for advisory jurisdiction in the constitutions of USA and Australia, but in Canada. It may be noted that a governor cannot seek advice from a high court.
The Supreme Court also is not bound to answer a reference made to it by president. Thus, it has discretion in the matter and for good reason to refuse to express any opinion on the question submitted to it. The advisory opinion of the court, though entitled to great respect, is not binding on all courts because it is not a law within the meaning of article. 141 (re Kerala education bill case. but, in re special courts bill case, the court made it clear that the views of it under article. 143 are binding on all courts. the court, however, suggested that the reference should not be vague and general but must be made on specific questions otherwise the courts would not be bound to answer. the advisory opinion of the supreme court has been taken on such important issues as Cauvery dispute, Ayodhya dispute, appointment and transfer of judges, etc.
The president may also seek the opinion of the supreme court, through a similar reference, on any treaty, agreement, covenant, engagement or other similar instrument which had been entered into or executed before the commencement of this constitution, and has continued in operation thereafter. On such matters (in respect of which the original jurisdiction of the Supreme Court is excluded), the court is bound to give its opinion. Article 143(2) lays down: “the president may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the supreme court shall, after such hearing as it thinks fit, report to the president its opinion thereon.”
However, in re special courts bill case, it was held that even in matters arising out of clause (2), the court may be justified in returning the reference unanswered for a valid reason.
A critique of advisory jurisdiction
Advisory jurisdiction differs from ordinary jurisdiction in that there is no litigation between two parties and the advisory opinion of the court is not binding on the government. The US Supreme Court decided early on against such a role, on the argument that it would encroach upon the legislative function and thereby negate the separation of powers that underpins the US constitution.
This gives a soft option to the Indian government on some politically difficult issues. The judiciary exists to interpret laws, expound the constitution and ensure that the rule of law prevails. The cabinet can weigh popular opinion in the balance before deciding upon issues of public policy. The judiciary cannot decide upon questions of belief, opinion or political wisdom, nor pronounce upon questions of history, archaeology and mythology. The cabinet cannot shift the burden of responsibility to the courts for matters of policy for which the government (or prime minister) of the day is too weak, timid or confused to make and implement a firm decision. The judiciary cannot compensate for the inadequacies of governments or the failure of the political process.
- Additional/ Supplemental jurisdiction (enlargement of the Supreme Court’s)
- Under article 138, 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. It shall have such 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 the parliament by law provides for the exercise of such jurisdiction. This enlarges the jurisdiction of the Supreme Court and provides it with very special jurisdiction to hear cases of most urgent nature directly and in its original jurisdiction for speedy disposal.
- Article 139 lays down that parliament may by law confer on the Supreme Court power to issue directions, orders or writs in matters not already covered under article32(2).
- Under article. 140, parliament may by law supplement the powers of the Supreme Court (ancillary powers) so that it can effectively perform its functions. But, such supplemental powers should not be inconsistent with any of the provisions of the constitution.
- Power to withdraw and transfer cases : Under the new article 139A inserted by the 44th amendment in 1978, the supreme court may transfer to itself cases from one or more high courts if these involve same or substantially the same questions of law as pending before it, and that such questions are substantially the questions of general importance. The court may move on its own or on an application made by the attorney general or by a party to such case.
Provided that the supreme court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the high court from which the case has been withdrawn, and the high court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.
Also, the Supreme Court may transfer cases, appeals or other proceedings from one high court to another in the interests of justice. This article enables the Supreme Court to decide cases involving same questions of law without delay and thus avoid conflicting interpretations of the provisions of the constitution by the different high courts.
- Law declared by it to be binding on all Courts: Law declared by the Supreme Court is binding on all courts in India vide article 141 but no law can be taken to have been ‘declared’ where no reasons are given. Also, what is binding is the principle or the ratio of the decision and not findings on facts, opinions (obiter dicta) or arguments. The Supreme Court is not bound by its own decisions and may in proper case ‘reverse’ its previous decisions.
Articles 141, 142 and 144 of the constitution make the position of the Supreme Court clear. The Supreme Court has singular constitutional role and therefore all authorities, civil or judicial in the territory of India are directed to act in the aid of the Supreme Court. The Supreme Court has power to initiate contempt proceedings against an erring judge of the high court, when that judge flouts the order of the Supreme Court.
- Inherent powers and enforcement of decree and orders of Supreme Court: Article 142(1) provides that “the supreme court in exercise of its jurisdiction may pass such decrees or orders as is necessary for doing complete justice in the matter pending before it”. Decrees and orders of the Supreme Court shall be enforceable throughout India in such manner as may be prescribed by the parliament. Until provision is made by the parliament the orders of the court will be enforced in the manner prescribed by the president. Inherent powers under article 142 cannot be invoked when alternative remedy is available (viz. review) and has already been availed of. The inherent power is meant only to correct orders when other remedy is not available.
The power under article 142 is very wide and the court can formulate legal doctrines to meet the ends of justice. The object of this article is to enable the court to declare law to give such directions or pass such orders as are necessary “to do complete justice”.
Subject to the provisions of any law made in this behalf by parliament, the supreme court shall, as respect the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself [article 142(2)].
For purposes of giving effect to the directions and decisions of the supreme court, all authorities, civil and judicial, in the territory of India, have been made subordinate to the authority of the supreme court in as much as all these are required to “act in aid of the supreme court” (article. 144).
RULES AND PROCEDURE OF SUPREME COURT
Subject to the provisions of any law made by parliament, the Supreme Court may, from time to time, with the approval of the president, make rules for regulating generally the practice and procedure of the court. For example, the minimum number of judges to decide an issue involving the interpretation of constitution or a presidential reference under article 143 shall be five. All cases will be decided by a majority of the judges hearing the case; a judge who does not concur could deliver a dissenting judgment or opinion (article 145). Article 147 clarifies that references to interpretation of the constitution shall cover interpretation of the government of India act, 1935, Indian independence act, 1947, etc.
A curative petition is a petition filed, for reconsideration of a final judgment/ order, passed by the Supreme Court, after exhausting the remedy of review under article 137.
POWERS AND JURISDICTION OF THE HIGH COURT
Like the supreme court, each high court is also to be a ‘court of record’ and of original and appellate jurisdiction with all the powers of such a court including the power to punish for its contempt (article 215). Just as the law declared by the Supreme Court is binding on all courts in India that declared by the high court is binding on all subordinate courts within the state or within the territory covered by the jurisdiction of the high court. It is the highest court of appeal in a state.
The pre-constitutional jurisdiction of the high courts is preserved by the constitution (article 225). The jurisdiction and powers of the high courts can be changed both by the parliament and the state legislature. The power conferred on the high court by article. 226 cannot be taken away or abridged by any law except by an amendment of the constitution.
In Tirupati Balaji Developers (p) ltd. verses State of Bihar, the apex court examined the relationship between the supreme court and the high courts. It was held that both are constitutionally independent of each other, both being courts of record and high court is not a court “subordinate/inferior” to Supreme Court except for purposes of Supreme Court’s appellate jurisdiction over high court in terms of articles 132-136, in which context high court exercises an inferior or subordinate jurisdiction. Moreover, articles. 139-A, 141 and 144 give an edge and assign a superior place in the constitutional hierarchy to Supreme Court in the context of their operation as well. However, high court does have a larger jurisdiction in the context of operation of articles 226 and 227. “If the Supreme Court and the high courts both were to be thought of as brothers in the administration of justice, the high court has larger jurisdiction but the Supreme Court still remains the elder brother”
- Original jurisdiction – 226 lay down that notwithstanding anything in article. 32, every high court shall have power throughout the territory under its jurisdiction to issue to any person or authority, directions, orders or writs or any of them for the enforcement of the fundamental rights or for any other purpose. the high court may set aside an illegal order, may declare the law or the right, may order relief by way of, for example, refund of illegal tax, etc.
There are certain other cases also which fall under the original jurisdiction of the high courts. The cases pertaining to marriage laws, divorce, company laws, wills of the deceased, cases involving a sum or property of certain value (pecuniary jurisdiction) may originate in the high courts. For example, Bombay high court has original jurisdiction in matters of Parsi marriage.
- Appellate Jurisdiction – A high court is essentially a court of appeal. It has appellate jurisdiction over subordinate courts. It may reduce the sentence or even acquit the accused against the judgment of a lower court. Further, where any high court is satisfied that a case pending in the lower courts involves a substantial question of law as to the interpretation of the constitution, it may withdraw the case and either itself decide it or determine the said question of law and return the case to the court concerned for disposal. When the high court has so returned the case, the court concerned shall dispose of the case in conformity with the judgment of the high court on that question. The object of article 228 is to make the high court the sole interpreter of the constitution in a state.
- Supervisory and Disciplinary Jurisdiction – Each high court also has powers of superintendence over all the courts and tribunals — other than those set up under any law relating to armed forces — in the area of its jurisdiction (article 227). Further, this power of superintendence includes a revision jurisdiction to intervene in cases of gross injustice or non-exercise or abuse of jurisdiction, even though no appeal or revision against the orders of such tribunal was otherwise available. This power of superintendence is wider than the power conferred on the high court to control inferior courts through writs under article. 226. it is not confined only to administrative superintendence (calling of returns, rules for regulating the practice and proceedings of the lower courts) but also judicial superintendence.
The power being extraordinary is to be exercised most sparingly and only in appropriate cases to keep the subordinate courts within the bounds of their authority. the main grounds on which the high court, usually interferes are when the inferior courts act arbitrarily or act in excess of jurisdiction vested in them, or fail to exercise jurisdiction vested in them, or act in violation of principles of natural justice.
There is a difference between jurisdiction under article 226 to issue a writ (certiorari, for example) and supervisory jurisdiction under article. 227. Firstly, the writ of certiorari is in exercise of its original jurisdiction by the high court but supervisory jurisdiction is akin to appellate revision or corrective jurisdiction. Secondly, in a writ of certiorari the record of the proceedings certified by inferior courts or tribunals is sent to the high court and if it wishes to exercise its jurisdiction it may simply annul, or quash the proceedings and then do no more. But in exercise of supervisory jurisdiction the high court may not only quash the impugned proceedings, judgment or order but it may make such directions as the facts and circumstances of the case may warrant for guiding the inferior court or tribunal to proceed further or afresh. In appropriate cases the high court may substitute its own decision. Thirdly, the jurisdiction under article 226 can be exercised on a prayer made on behalf of the party aggrieved, but the supervisory jurisdiction can be exercised suo motu as well.
Every high court has full control over its staff. the salaries and allowances of the judges and of the high court staff are all charged on the consolidated fund of the state. appointments of officers and staff of a high court are made by the chief justice of the court or by such other judge or officer of the court as he may decide (subject to the provisions of any law made by the legislature of the state). the terms and conditions of service of the staff and officers of the court should appropriately be settled by rules made by the chief justice and approved by the governor (article. 229).
The jurisdiction of a high court may be extended to or excluded from a union territory. where the high court of a state exercises jurisdiction in relation to a union territory, nothing in this constitution shall be construed as empowering the legislature of the state to increase, restrict or abolish that jurisdiction (article 230).
Under article 235, the high court has disciplinary jurisdiction over subordinate courts; only a high court can exercise disciplinary power against a judge of the inferior court. the ‘control’ over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a state and holding any post inferior to the post of district judge shall be vested in the high court. Appointments of persons to be, and the posting and promotion of, district judges in any state shall be made by the governor of the state in consultation with the high court exercising jurisdiction in relation to such state (article 233).
The word “control” referred to in article 235 has been used in a comprehensive sense and includes the control and superintendence of the high court over the subordinate courts and the persons manning them, both on the judicial and administrative side. Such control and consultation are not a matter of mere formality; they are the constitutional power and privileges of the high court. its obligation cannot be diluted by sheer inaction or failing to act when the high court must act. the “consultation” implies meaningful, effective and conscious consultation.
INDEPENDENCE OF JUDICIARY
The independence and impartiality of the judiciary is one of the hall-marks of the democratic set-up of government. It is the first condition of liberty and rule of law in a democracy. Indeed, an independent judiciary is part of the ‘basic structure’ of the constitution. The constitution has made several provisions to ensure independence of judiciary:-
(1) Appointment — Appointment of judges to the high courts and Supreme Court is done by president only after consultation with the chief justice of India [article. 124(2) and 217(1)].
(2) Transfer – In the matter of transfer of high court judges, chief justice of India must be consulted by president [article. 222(1)].
(3) Security of Tenure – A judge can only be removed for proved misbehavior or incapacity, and even so, a difficult procedure of impeachment is necessary (articles. 124 and 218).
(4) Conditions of service – The salary, privileges, rights and allowances of judges cannot be altered to their disadvantage once they are appointed. They are not subject to vote of legislature (article. 125 and 221). Further, no discussion in legislature can take place on the conduct of the judges (article. 121).
(5) Administrative powers – Article 146 and 229 place the administration and recruitment of staff in the hands of Supreme Court and the high courts. Article 235 gives high courts the power of administration over subordinate courts.
(6) Power to punish for its contempt – The Supreme Court and the high courts has the power to punish any person for its contempt (articles. 129 and 215). This power is very essential for maintaining the independence of judiciary.
(7) Parliament can extend, but cannot curtail the jurisdiction and powers of the Supreme Court (Article 138).
(8) Separation of judiciary from executive – Article 50 directs the state to take steps to separate the judiciary from the executive in the public services of the state.
(9) Prohibition on practice after retirement – Article 124(7) prohibits a retired judge of the Supreme Court to appear and plead in any court or before any authority within the territory of India.