At the apex of the entire judicial system is the Supreme Court of India. The Supreme Court originally consisted of a Chief Justice and seven other judges. In 1985 the strength was increased, it comprises of the Chief Justice and not more than 25 other judges.
The Chief Justice is appointed by the President in consultation with such other judges of the Supreme Court and High Court as he may deem necessary. Convention dictates the appointment of the senior most judges of the Supreme Court as Chief Justice. In the case of other judges the President appoints them after consulting the Chief Justice of India also. In reality the Cabinet deliberates upon the opinion of the Chief Justice and advises the President about the person to be appointed. A judge takes his oath of office before the President or someone appointed by the President for the purpose.
To be appointed a Judge of the Supreme Court a person must be (1) a citizen of India and (ii) either a distinguished jurist or one who has been a High Court Judge for at least five years or an advocated of a High Court for at least 10 years. No minimum age is fixed for appointment as a Judge.
Once appointed a Judge of the Supreme Court holds office till he attains the age of 65 years. He may relinquish office earlier by addressing his resignation to the President. A Judge can be removed by the President upon an address to the effect being passed in each House of Parliament by a special majority. Such removal may take place only on the grounds of proved misbehavior or incapacity. In this context it may be pointed out that the constitution does not provide for impeachment of a Judge. Impeachment is provided only in the case of the President. In the case of an impeachment motion being passed by two Houses, the President forthwith ceases to be the President. But in the case of the motion of removal of a judge, the President must issue the required orders.
Article 125 empowers Parliament to determine by law the salaries etc. of the Judges. By the 54th Amendment Act 1986 the salaries of the Judges were revised upwards to minimize the inflationary pressures and attract the best talent to judicial posts.
They are entitled to a pension etc. The salaries of the Judge and other expenses of the Supreme Court are changed on the Consolidation Fund of India.
Independence of the Court
The Constitution has secured the Independence of the Judge in a number of ways.
- Under Article 125 the salaries of the Judges are fixed and cannot be varied of their disadvantage during their term. These salaries are further more charged on the Consolidation Fund of India and hence not notable.
- Securing of service is assured to the judges through the appointing authority is the President, the process of removing the judges from office is difficult and they can be removed only on grounds of proved misbehavior and incapacity.
- The conduct of judge of the Supreme Court is not to be discussed in Parliament, except upon a motion for an address to the President for the removal of the judge.
- The jurisdiction of the Court cannot be curtailed by parliament.
- After retirement a judge of the Supreme Court shall not plead or act in any Court or before any authority within the territory of India.
The jurisdiction and powers of the Supreme Court are quite wide. The Supreme Court has a threefold jurisdiction.
The Supreme Court has originally jurisdiction i.e. cases which can originate with the Supreme Court alone over disputes between (a) the Government of India and one or more states (b) the Government of India and any stat and states on one side and one or more state on the other (c) two or more states. No other court in India shall have the power to entertain any such suit. Thus the Supreme Court is a Federal Court.
However this jurisdiction does not extend to disputes arising out of treaty or agreement which is an operation and excludes such jurisdiction. The Supreme Court’s may also be excluded in some other matter, inter-state disputes, matters referred to the Finance Commission, adjustment or certain expenses as between the Union and the States. Furthermore, ordinary commercial matters do not fall in this category. Most scholars include in the original jurisdiction the power of the Supreme Court to decide disputes regarding Fundamental Rights. It is original in the sense that the aggrieved party has the right to directly move the Supreme Court by pressing a petition. However some constitutional experts opine that the writ jurisdiction of the Supreme Court should be treated separately as the dispute in such cases is not between the units of the Union but an aggrieved individual and the Government.
The Supreme Court is the highest Court appeal from all courts in India. It hears appeals in (i) cases involving interpretation of the constitution- civil, Criminal or otherwise (Article 132) (ii) Civil cases irrespective of any constitutional issue (Article. 133) (iii) Criminal matters irrespective of any constitutional issue (134). Besides the Supreme Court may grant special leave to appeal in certain cases (136).
In constitutional matters an appeal can be made if the High Court certifies that the cases involves a substantial question of law or general importance or that in its opinion the question needs to be decided by the Supreme Court.
In criminal cases an appeal lays the Supreme Court if the High Court certifies that the case is fit for appeal. But an appeal can be made without the certificate of a High Court if the High Court has in an appeal reversed an order of acquittal of the accused and sentenced him to death or where the High Court has withdrawn a case from the lower court, conducted the trail itself and awarded the accused the death sentence and more than 10 years imprisonment.
The right of the Supreme Court to entertain appeal by Special leave in any cause or matter determined by any court or tribunal is unlimited. The exercise of the power is left entirely to the discretion of the Supreme Court. However the power is clearly to be exercised only under exceptional circumstances where substantial question of law or general public interest is involved, where grave injustice has been done or where a tribunal has exceeded its jurisdiction or has run counter to nature justice.
The Supreme Court renders advice on any question of law or fact of public importance as may be referred to it for consideration by the President. These are no litigation involved and the opinion given by the Supreme Court is not to be considered as a judgment. The advice is not binding on the President who may or not accept it. The main use of this provision is to enable the Government to get an authoritative opinion as to the legal validity of a matter before action is taken upon it. The court however is bound to give its opinions on matters relating to disputes arising out of a treaty or agreement entered into before the commencement of the constitution.
Article 129 declares the Supreme Court as a court of record thus its proceedings are recorded for perpetual verification and testimony its records are admitted in evidence and cannot be questioned in any court of law and it has the power to punish by fine and imprisonment any person guilty of contempt or its authority.
ii) The decision of the Supreme Court is binding on all courts within the territory of India. However the Supreme Court is not bound by its earlier decision it can come to a different decision if it is convinced that it had made an error or harmed public interest.
iii) The Supreme Court can make rules regarding the practice and procedure of the court with the approval of the President.
iv) The Supreme Court can appoint its officers and servants in consultation with the UPSC and determine their conditions of service in consultation with the President. The Supreme Court can recommend to the President the removal of the Chairman and members of the UPSC. Under Article 139-A the Supreme Court may transfer to itself cases from one and more High Courts it these involve question of law or of great significance. The Supreme Court may transfer cases from one High Court to another in the interests of Justice.
Judicial review is understood to mean the power of the highest court of the land to finally pronounce on the legality or otherwise of a legislation in the context of the constitution. In India the Supreme Court enjoys the power of judicial review. It can pronounce upon the constitutional validity of laws passed by the Legislature and the actions taken by the administrative authorities. It acts as the guardian of the constitution. Article 32 specifically confers the power of Judicial review on the Supreme Court. However the constitution itself exempts some provisions from judicial review such as the advice tendered by the Council of Ministers to the President or Governor, privileges of members of Parliament and States Legislatures, validity and conduct of proceedings in Parliament, delimitation of constituencies etc. Furthermore, in India the Supreme Court can pronounce upon the constitutionality of a law only if it is contrary to the letter of the constitution, it cannot go into the objectives underlying the law and administrative actions and declare it unconstitutional.