THE JUDICIARY

Under our Constitution, the judiciary is a single integrated system of courts for the Union and the states with
the Supreme Court at the apex. By the single integrated system we mean-

• The Supreme Court is the head of the entire system and not only supervises but also exercises control over
the functioning of other courts.

• There are no separate sets of laws and a single civil and criminal system operates throughout the country.

• All cases coming from the Lower Courts can be taken to the High Court and ultimately to the Supreme
Court, by way of appeal.
 THE SUPREME COURT

COMPOSITION

• The Supreme Court of India consists of a Chief Justice of India

and not more than 33 other judges until the parliament by
law prescribes a larger number of judges.

• The Supreme Court Amendment Act, 2019, which received

the assent of the President of India on August 9, 2019,
increased the number of judges from 30 to 33.
QUALIFICATIONS

A person is qualified for appointment as a judge of the Supreme Court unless

He is a citizen of India,
Has been for at least five years a Judge of a High Court or of two or more such courts in succession;
Has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or
He is, in the opinion of the President, a distinguished jurist.
 APPOINTMENT OF SUPREME COURT JUDGES

• Every Judge of the Supreme Court is appointed by the President of India in consultation with the Judges of the
Supreme Court and High Court, besides the Council of Ministers.
• In case of appointment of a judge other than the Chief Justice of India, the Chief Justice of India shall be
consulted.
• Consultation would generally mean concurrence.
• In case of the Chief Justice, usually the senior judge of the Supreme Court is appointed.

APPOINTMENT OF AD HOC JUDGES

The Chief Justice may appoint a Judge of a High Court as an ad hoc Judge of the Supreme Court for a
period as may be necessary.
Such appointments are made with the consent of the President and after consultation with the Chief
Justice of the High Court concerned.
The Chief Justice may at any time, with the previous consent of the President request attendance of
retired Judges of the Supreme Court or High Courts to act as Judge of the Supreme Court
 TERM OF OFFICE

A Judge of the Supreme Court shall hold office until he attains the age of 65 years.
A Judge may resign his office, by submitting his resignation letter to the President.
A Judge of the Supreme Court cannot be removed from office except by an order of the President
on the ground of proved misbehavior or incapacity.
Such an order is passed after an address by 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 the members of
the House present and voting for such removal. This procedure is known as impeachment

.In May 1993, a motion to impeach a Judge of the Supreme Court (Justice V. Ramaswami) failed
to get the support of the majority of the total membership of the House (Lok Sabha). That was the
first ever move in the history of India to impeach a Judge of the Supreme Court.
SEAT OF SUPREME COURT:

The Supreme Court shall sit in Delhi or in any other place as the Chief Justice may decide with the approval of
the President.
INDEPENDENCE OF THE JUDICIARY FROM THE CONTROL OF EXECUTIVE AND LEGISLATURE

Independence of the Judiciary is ensured by the following devices:

1. Appointment of Judges:

Every Judge of the Supreme Court is appointed by the President after consultation with the Cabinet as well
as the Judges of the Supreme Court and High Court. Thus, the judiciary and the executive are involved in
the appointment of Judges

2. Removal of Judges:

The Judges cannot be removed from office by any authority through a normal simple procedure. A judge
can be removed by the President only for proven misbehavior and incapacity. This charge needs to be
proved only by a joint address by both Houses of Parliament and supported by a two-thirds majority of
members present and voting. The word 'proved' is very important. It means that an address can only be
presented after an allegation has been thoroughly examined by some impartial tribunal.

3. Security of Tenure:
A Judge can remain in office till he/she has attained the age of 65 years. He/She can be removed by the
President on the grounds of "proved misbehavior or incapacity.”
4. Security of Salaries and Service Conditions:

Judges’ salaries, allowances, etc., shall not be changed to their disadvantage during their term of office. The
salaries of the Judges cannot be reduced except during periods of financial emergency. Their salaries and
allowances are charged on the Consolidated Fund of India and so are not subject to the vote of Parliament.

5. Freedom to Announce Decisions and Decrees:

The Judges are free to announce their decisions and decrees in the court chambers without any danger to
their person, property or fame. Their decisions cannot be criticized in public or by the press. It is the duty of the
State to ensure their personal safety at all costs.

6. Punishment for Contempt of Court:

The Supreme Court can punish for contempt of court if a person or authority makes an attempt to lower its
authority.

7. Full Control Over its Procedure of Work and Establishment:

The Supreme Court is free to decide its own procedures of work and its establishment as well as the
conditions of service of its employees. Thus, it is free from influence of any outside agency.
8. No Discussion in the Legislature on the Conduct of Judges:

No discussion can take place in the Parliament regarding the conduct of any judge or about the discharge of his
duties except when there is a motion for his removal.

9. Prohibition of Practice after Retirement:

The Judges are paid handsome pensions but they are not allowed to practise after their retirement. This has
been done so that the Judges are not obliged, during their tenure as Judges, to any prospective employer.
Moreover, if they are allowed to practise they might influence their former colleagues in the judiciary.
 JURISDICTION AND POWERS OF THE SUPREME COURT
'Jurisdiction' is the power that a court of law exercises to carry out judgments and enforce laws. The Supreme Court
is the protector and the final interpreter of the Constitution. It has both original and appellate jurisdiction as well as
advisory jurisdiction.
ORIGINAL JURISDICTION
Original Jurisdiction means the power to hear and determine a dispute in the first instance; ie., those cases which
cannot be moved in any court other than the Supreme Court.
1. Centre-State or Inter-States Disputes:
The Supreme Court has been given exclusive original jurisdiction in any dispute-
(i) between Government of India and one or more States; or
(ii) between the Government of India and any State or States on one side and one or more States on the other; or
iii) between two or more States.

( Exception: This jurisdiction shall not extend to:

(i) a dispute arising out of a treaty, agreement, etc., which is in operation,

(ii) in certain other matters such as inter-state water disputes, matters referred to the Finance Commission, and
(iii) adjustment of certain expenses and pensions between the Union and the States.
 2. Protection of Fundamental Rights:

• The original jurisdiction 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.
• Any individual can approach the Supreme Court in case of violation of a fundamental right.

3. Transfer of Cases from Lower Courts:

• Under Article 139 A, inserted by the 44th Amendment in 1978, the Supreme Court may transfer to itself cases
from one or more High Courts, if these involve questions of law or cases are of great importance.
• The Supreme Court may transfer cases from one High Court to another in the interest of Justice.

4. Interpretation of Constitution:

• All cases where interpretation of the Constitution is required can be directly filed in the Supreme Court.
• The Supreme Court has the power of exclusive jurisdiction in regard to questions as to the Constitutional
validity of central laws.
 APPELLATE JURISDICTION

• Appellate Jurisdiction means the power to grant special leave to appeal against the judgement delivered by
any court in the country.
• It is a Court of Appeal which means that it is a court that may change the decision or reduce the sentence
passed by the lower courts.
• The Supreme Court is the final Court of Appeal.
• An appeal lies to the Supreme Court from any judgment or final order of a High Court in India.
• The appellate jurisdiction extends to Constitutional, civil and criminal cases.

1. Constitutional Cases:

All matters irrespective of the nature, where a certificate is issued by a High Court that it involves an important
point of law and needs interpretation of the Constitution, can be brought before the Supreme Court.

If the High Court refuses to give a certificate on such a case the Supreme Court can grant special leave of
appeal.
 2. Civil Cases:
Appeals in civil matters lie to the Supreme Court, if the High Court certifies:

(i) that the case involves a substantial question of law of general importance, and
(ii) that the question needs to be decided by the Supreme Court.

However, if the High Court refuses to give a certificate, the Supreme Court can grant special leave to appeal in
suitable cases.
3. Criminal Cases:
Two types of appeals in criminal cases lie in the Supreme Court:
(i) Cases without the certificate of the High Court.
(ii) Cases with the certificate of the High Court.

The certificate of the High Court is not required in a case:

(i) where the High Court has reversed the judgment of acquittal given by the Lower Court and punished the accused
with a death sentence;
(ii) a case which is withdrawn by the High Court from a Subordinate Court and sentenced the accused to death.

In all other criminal cases, a High Court certification that the case involves a substantial point of law and
interpretation of the Constitution is required for appealing to the Supreme Court
 ADVISORY JURISDICTION

The Supreme Court has advisory jurisdiction to give its opinion) on any question of law or law of public
importance as may be referred to it for consideration by the President of India.
The Supreme Court may be required to express its opinion in two classes of matters, in an advisory capacity:

(i) Any question of law may be referred to the Supreme Court if the President considers that the question is of
public importance and it is necessary to obtain the opinion of the Supreme Court.
Such opinion of the Supreme Court is advisory and not binding on the Government nor is it executable as a
judgement of the Supreme Court.

(ii) Disputes arising out of pre-Constitution treaties and agreements which are excluded from original
jurisdiction by Article 131.

REVISORY JURISDICTION

The Supreme Court under Article 137 is empowered to review any judgement or order made by it with a view
to removing any mistake or error that might have crept in the judgement or order.
This is because the Supreme Court is a court of record and its decisions are of evidentiary value and cannot be
questioned in any court.
 JUDICIAL REVIEW

• The Supreme Court is the interpreter of the Constitution and its decision is final.
• It has the power to review laws passed by the Union or State legislatures.
• The Supreme Court can declare a law 'ultra vires' or null and void if it is against the letter and spirit of the
Constitution or contravenes any provision of the Constitution.
• This power is referred to as the power of judicial review.
• The minimum number of Judges to hear and decide a case involving the interpretation of the Constitution shall
be five.

The Supreme Court has the power to review all National and State laws and executive orders and declare them
null and void if they go against the provisions of the Constitution.
For example, in 1970, the Supreme Court had
declared the following Acts of Parliament as null and void:
(1) Presidential order concerning the derecognition of the former princes.
(ii) Banking Companies Act, 1969, for the nationalization of 14 banks.

(iii) In August 1999, the Supreme Court held that 'merit' should be the sole criterion for admissions to post-
graduate and other higher courses in medicine and engineering.
 NEED FOR JUDICIAL REVIEW

The Constitution has provided for a balance of powers between the Centre and the States.
If the Union government or the State go beyond its limits, the Supreme Court can settle the dispute.

(i) In a written Constitution a law may be ambiguously worked.

The question of interpretation of the Constitution is bound to arise and the Supreme Court only
has the power of original jurisdiction.

(ii) The legislature may not possess the wisdom, experience and impartiality which are needed to explain
what the law means.
This function can be best performed by the Supreme Court.
 COURT OF RECORD

• A Court of Record is a court whose judgements are recorded for evidence and testimony.
• The judgements are in the nature of 'precedents', Le, the High Courts and other Courts are bound to give a
similar decision in a similar case.
• They are not to be questioned when they are produced before any subordinate court.

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.

The Court of Record has two implications:

(i) Its judgements and orders are preserved as record. These can be produced in any court as precedents.

(ii) If a person commits a contempt of court, the court has the authority to punish him. No authority can deprive
the court of this right.

Truly, the Supreme Court acts as the guardian of the Constitution.

 FUNCTIONS OF THE SUPREME COURT
SETTLEMENT OF DISPUTES

Original:
The Supreme Court has the original jurisdiction to settle disputes between the central government and one or
more States and Union Territories (UTs) as well as between different States and UTs

. Besides, it has original jurisdiction with regard to the enforcement of Fundamental Rights, transfer of cases
from High Courts and interpretation of the Constitution.

On Appeals:

(i) The Supreme Court deals with appeals which are made to it in respect of its Original Jurisdiction. It gives its
verdict on the interpretation of the Constitution. It also settles Inter-State or Union-State disputes.

(ii) Using its Appellate Jurisdiction, it hears appeals involving interpretation of the Constitution on civil and
criminal cases where the special point of law is involved.

(iii) Appeal by Special Leave.

 Appeal by Special Leave:
Under Article 136 of the Constitution, the Supreme Court can allow leave to appeal against the judgement of any court of
India.
It is a special power which is to be exercised only under exceptional circumstances.
The Supreme Court has laid down the principles according to which this power shall be used.

• In civil cases, special leave to appeal would not be granted unless there is a question of law or general public interest
involved in the case.

In criminal cases, the Supreme Court interferes when it is shown that exceptional and special circumstances exist and grave
injustice has been done.

The Supreme Court could quash the decision of a tribunal when the tribunal has exceeded its jurisdiction or adopted a
procedure that runs against the established rules of natural justice.
ENFORCEMENT OF FUNDAMENTAL RIGHTS

Any citizen whose rights are violated may move the Supreme Court for the enforcement of the rights. The Supreme Court has
power to issue orders or writs, in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the
enforcement of any of the Fundamental Rights.

The Constitution prohibits the State from making any law that takes away or abridges the Fundamental Rights. If it does so,
the law shall be declared null and void by the Supreme Court.
 ADMINISTRATIVE AND SUPERVISORY FUNCTIONS

(i) Appointments of officers and staff of the Supreme Court are made by the Chief Justice of India or by such
other judge. as he may direct.

(ii) The Court makes rules regarding the conduct of advocates and other persons appearing before it.
It also makes rules regarding the fees to be charged in respect of proceedings in the Court.

(iii) The Supreme Court ruled that Chief Justice of India's recommendation to transfer judges of the High Courts
was not binding on the Government, if the recommendation was made without consulting four seniormost
judges of the Supreme Court.

( iv) The Supreme Court simplified procedures in the area of Public Interest Litigation

(PIL). A person can register a case simply by writing on a postcard or application stating his complaint. These
complaints are registered and necessary orders are passed.
The grievances of women, children, bonded labourers and other weaker sections are given attention under the
scheme.
 IMPORTANT WRITS

1. Habeas Corpus
It means 'to have the body. By issuing such a writ, the High Court or the Supreme Court can get the body of
any person released if it has been unlawfully detained by any person or a group of persons or by the State. This
writ is, thus, a great safeguard for the personal freedom of a citizen.

2. Mandamus
In Latin, it means 'we order. It is a command or an order from a Superior Court to a lower or an administrative
authority to perform a certain duty.
3. Writ of Prohibition:
The Writ of Prohibition is an order issued by a superior court to a lower court to stop proceedings in a case
which might be in excess of the jurisdiction of the lower court
4. Writ of Certiorari:
This writ is issued by a superior court to a judicial authority desiring "to be informed of what is going on."
Though it appears similar to the Writ of Prohibition, there is a difference. Writ of Prohibition is issued when
certain proceedings are going on. The Writ of Certiorari is issued after the order has already been passed by
the lower court.
5. Quo-warranto:
It means "by what order." It is issued when a person has usurped any office. This writ thus prevents public
officers from forcibly or wrongly holding a high public office.
 TERMS
Judgement / A Judgement must be a decision pronounced by a Court determining the rights of the parties in the
proceeding
Decree: An order having the force of law.

Affidavit: A written statement made under oath, swearing to the truth of the contents of the document.

Notarise: To formally complete a document by acknowledgment or oath

Contempt of Court: Disrespect for the dignity or authority of a Court, including acts such as bad behavior in
Court, refusing to answer a question as a witness, interfering in the business of the Court, speaking
disrespectfully to the Judge, or refusing to carry out a Court Order.

Rule of Law: Supremacy of law, implying that no person can be made to suffer in body or goods except for a
breach of law established in the ordinary Court of the land. Constitution grants wide powers to the High Courts
and the Supreme Court for the preservation of the rule of law
Writ: A writ is an order from a judicial authority asking a person to perform some act or refrain from performing
an act.
Jurist: A person with expert knowledge of law, someone who analyses and comments on law -a specialist legal
scholar.