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. Below the Supreme Court stand the High Courts of different
States and under each High Court there is a hierarchy of other subordinate courts.

NEED FOR A SINGLE INTEGRATED JUDICIARY

India has opted for single integrated judicial set-up unlike the double judicial set-up in the
USA. This is because of the following reasons:

(i) In a representative democracy, administration of justice assumes special significance in view

of the rights of individuals, which need protection against executive or legislative interference.
This protection is given by making the judiciary independent of the other two organs of the
government.

(ii) An independent and supreme judiciary is an essential requirement of a federal governance.

In a federal set-up, there is a constitutional division of powers between the executive,
legislature and judiciary. The Supreme Court not only safeguards the distribution of these
powers but also prevents any action that violates the limitations imposed by the Constitution.

(iii) An independent and impartial judiciary is an essential requisite for ensuring human rights
and protecting democracy.

THE SUPREME COURT

Composition: The Supreme Court of India consists of a Chief Justice of India and not more
than 33 other judges, until Parliament by law prescribes a larger number of judges. The
Supreme Court (Number of Judges) Amendment Act, 2019, which received the assent of the
President of India on August 9, 2019 increased the number of judges of the Supreme Court
(excluding the Chief Justice of India) from 30 to 33.

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 QUALIFICATIONS FOR APPOINTMENT AS JUDGE OF SUPREME
COURT

A person is not qualified for appointment as a Judge of the Supreme Court unless he is a citizen
of India, and

(i) has been for at least five years a Judge of a High Court or of two or more such courts in
succession; or

(ii) has been for at least ten years an advocate of a High Court or of two or more such courts in
succession; or

(iii) is, in the opinion of the President, a distinguished jurist.

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

When the Chief Justice is unable to perform the duties of his office, by reason of absence or
otherwise, the President may appoint another Judge of the Supreme Court as the acting Chief
Justice.

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 previous consent of the President request attendance
of retired Judges of 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 misbehaviour 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

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House and by a majority of not less than two-thirds of the members of the House present and
voting for such a 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 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 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 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 proved
misbehaviour and incapacity. This charge needs to be proved only by a joint address by both
Houses of Parliament and supported by a two- third 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 ground of "proved misbehaviour 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 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 criticised in public or by the press. It is the duty of the State to
ensure their personal safety at all costs.

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6. Punishment for Contempt of Court: The Supreme Court can punish for the 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 OF THE SUPREME COURT

The Supreme Court of India (Court) is a multi-jurisdictional court which exercises various
jurisdictions. Itis the highest and the final Court of Appeal under the Constitution of India
(Constitution). Various jurisdictions exercised by the Court include original, appellate,
extraordinary, review and curative, Suo motu jurisdiction and statutory appeals amongst others.
Original jurisdiction - Original jurisdiction means the list which originates in the Court from
the first instance. Original jurisdiction of the Court can be classified into the following:

(a) Article 131 of the Constitution. — Article 131 confers jurisdiction upon the Court to
decide any dispute between the Government of India and one or more States or between the
Government of India and any State or States on one side and one or more States on the other
or between two or more States, if and insofar as the dispute involves any question (whether of
law or of fact) on which the existence or extent of a legal right depends. Article 131 of the
Constitution of India further provides, that the exclusive jurisdiction shall not extend to a
dispute arising out of any treaty, agreement, covenant, engagement, or any other similar
instrument which, having been entered into or executed before the commencement of this
Constitution, continues in operation after such commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.

(b) Article 32 of the Constitution. — Article 32 confers the power to the Court to exercise
writ jurisdiction. A party can file a writ before the Court for enforcement of fundamental rights

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as envisaged in the Constitution. By virtue of Article 32, the Court can issue directions, orders
or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari. Another facet of Article 32 is public interest litigation commonly known as PIL,
whereby the Court entertains matters in which interest of the public at large is involved. A PIL
can be filed before the Court by any individual or group of individuals, by filing a writ petition.
At times a letter addressed to the Chief Justice of India has also been treated as a PIL.

(c) Article 143 of the Constitution. — The Court exercises advisory jurisdiction under Article
143 of the Constitution. According to Article 143(1), if at any time it appears to the President
that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of
such public importance that it is expedient to obtain the opinion of the Court upon it, the
President may refer the question to the Court for consideration and the Court may, after such
hearing as it thinks fit, report to the President its opinion thereon. It has been held by the Court
that a reference is not to be returned unanswered on ground of form or pattern alone. It requires
appropriate analysis, understanding and appreciation of content or issue on which opinion of
Court is sought by President, keeping in view constitutional responsibility, juridical propriety
and judicial discretion. The opinion of Court under advisory jurisdiction has persuasive value
on all the subordinate courts in India under Article 141.1

(d) Article 139-A of the Constitution. — Article 139-A of the Constitution deals with the
jurisdiction of the Court with respect to transfer of certain cases. According to Article 139-
A(1), where cases involving substantially same questions of law are pending before the Court
and one or more High Courts or before two or more High Courts and the Court is satisfied on
its own motion or on an application made by the Attorney General of India or by a party to any
such case that such questions are substantial questions of general importance, the Court may
withdraw the case or cases pending before the High Court or the High Courts and dispose of
all such cases itself. The power of the Court to transfer certain cases is further widened by
Article 139-A (2) which bestows upon the Court by providing that it may, if it deems expedient
so to do for the ends of justice, transfer any case, appeal or other proceedings pending before
any High Court to any other High Court. Additionally, Section 25 of the Civil Procedure Code,
1908 and Section 406 of the Criminal Procedure Code, 1973 also deal with transfer of cases.

1
Special Courts Bill, 1978, In re, (1979) 1 SCC 380.

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Appellate jurisdiction - Articles 132, 133 and 134 of the Constitution provide for appellate
jurisdiction, provided a certificate is granted by the High Court concerned. According to Article
132 of the Constitution, an appeal shall lie to the 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 134-A that the case involves a substantial question of
law as to the interpretation of the Constitution. The expression “final order” includes an order
deciding an issue which, if decided in favour of the appellant, would be sufficient for the final
disposal of the case. 9. The question whether or not to certify a given case to be fit for appeal
under this clause is a matter for the judicial discretion of the High Court. The word “certify”
used in this clause suggests that the High Court is expected to apply its mind before certifying
the case to be fit for appeal. Mere grant of a certificate would, however, not preclude the Court
from determining whether the conditions prerequisite for the grant are satisfied. It is, therefore,
always desirable and expedient for the High Court concerned to give its reasons for granting
the certificate, that would assist the Court in appreciating if the conditions prerequisite are
satisfied.2 Article 133 of the Constitution of India provides for appellate jurisdiction of the
Court in appeals from High Courts in regard to civil matters in a case where the High Court
certifies under Article 134-A of the Constitution. Article 134 of the Constitution gives power
of appellate jurisdiction of Court in regard to criminal matters.

Extraordinary jurisdiction - The Court has been conferred extraordinary jurisdiction under
Article 136 of the Constitution. Article 136 provides that the Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order passed or
made by any court or tribunal in the territory of India. Thus, even against interim orders special
leave petition can be preferred. The only restriction is under Article 136(2) with respect to
armed forces. Special leave under Article 136 is granted at the discretion of the Court. The
Court usually follows the basic principles such as question of law involved, miscarriage of
justice, absence of a speaking order, non-interference in finding of facts, absence of efficacious
and alternate remedy unavailable, interference where there are mixed questions of law and
facts. It is the extraordinary jurisdiction of the Court that is used the most by the parties to file
a lis.

Review and curative jurisdiction - Article 137 of the Constitution provides for the review of
judgments or orders by the Court. The Court has the power to review any judgment pronounced

2
Ahmedabad Mfg. & Calico Printing Co. Ltd. v. Ram Tahel Ramnand, (1972) 1 SCC 898, 905.

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or order made by it provided that there is discovery of new and important matter or evidence
which, even after the exercise of due diligence, was not within the knowledge of the litigant or
could not be produced by him or a mistake or error apparent on the face of the record or for
any other sufficient reason. It has been held that exercise of Court’s powers of review must be
for correction of a mistake and not to substitute a view taken in a judgment. Review
proceedings are not in the nature of an appeal and have to be strictly confined to ambit of Order
47 Rule 1 of the Civil Procedure Code, 1908 3.

Curative petitions: The principle of curative petition evolved from the case of Rupa Ashok
Hurra v. Ashok Hurra4 wherein it was observed that the Court can exercise curative jurisdiction
under its inherent powers even after dismissal of review petition to prevent abuse of its process
and to cure gross miscarriage of justice. In the aforementioned case, it was held that a petitioner
is entitled to relief ex debito justitiae if he is able to firstly establish that principles of natural
justice were violated and he was not a party to the lis but the judgment adversely affected his
interests or, if he was a party to the lis, he was not served with notice of the proceedings and
the matter proceeded as if he had the notice. Secondly, where in the proceedings a Judge has
failed to disclose his connection with the subject-matter or the parties giving scope for an
apprehension of bias and as a result the judgment adversely affects the petitioner. A curative
petition is always filed after the dismissal of a review petition and must contain a certificate by
a Senior Advocate with regard to the fulfilment of the requirements as outlined in the Supreme
Court Rules, 2013.

Suo motu jurisdiction - Suo motu jurisdiction means the Court out of its own accord takes up
matters where certain guidelines or directions are required in the interest of justice. Suo motu
jurisdiction has been invoked by the Court on several crucial occasions. The Court recently
while exercising its suo motu jurisdiction issued guidelines on measures to ensure well-being
of children in child protection homes owing to the outbreak of COVID-19 5. It has also taken
up suo motu cognizance of the menace that overcrowding of prisons can cause and have
directed that an urgent action be taken to prevent the spread of COVID-19 in prisons across
India.6

3
Union of India v. Sandur Manganese & Iron Ores Ltd., (2013) 8 SCC 337.
4
(2002) 4 SCC 388.
5
Contagion of Covid-19 Virus in Children Protection Homes, In re, (2020) 15 SCC 280.
6
Contagion of Covid-19 Virus in Prisons, In re, (2020) 5 SCC 313.

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Statutory appeals - Apart from exercising various jurisdictions, the Court also hears and
decides appeals filed under various statues. For instance, an appeal lies under the Consumer
Protection Act, 1986 against final order of the National Consumer Disputes Redressal
Commission, Section 38 of the Advocates Act, 1961 provides for appeal to the Court by any
person aggrieved by an order made by the Disciplinary Committee of the Bar Council of India
under Section 36 or Section 37 of the Advocates Act, 1961 and Section 423 of the Companies
Act, 2013 provides for an appeal to the Supreme Court of India against any order of the
Appellate Tribunal, an appeal also lies to the Court from an order of the Appellate Tribunal for
Electricity under the Electricity Act, 2003, etc.

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 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:

(i) Presidential order concerning derecognisation of the former princes.

(ii) Banking Companies Act, 1969, for the nationalisation 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 their limits, the Supreme Court can settle the
dispute.

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(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', i.e., 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.

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

(iii) Appeal by Special Leave.

Appeal by Special Leave: Under Article 136 of the Constitution, the Supreme Court 136 allow
leave to appeal against the judgement of any court of India. It is a special power 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 which 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 which 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

(1) 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.

(i) 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.

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(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.

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