Indian Polity: Supreme Court

The Supreme Court came into existence on January 28, 1950.

About

It is as an integrated judicial system of Courts that is present in India. (Federation for Legislature and executive)

The Supreme Court is the apex court ( in the hierarchy) in the country. The Supreme Court is the guardian of the Constitution.

The High Courts are below the Supreme Court. Under the High Court there is a system of subordinate courts. (District Courts and other lower courts).

The Supreme Court is the guarantor and protector of the Fundamental Rights of the citizens.

The Security of tenure is provided to the judges by the Constitution. This means the judges of Supreme Court can be removed by the President only in the manner and on the grounds mentioned in the Constitution.

The Judges of the Supreme Court do not hold the office during the pleasure of the President.

(NOTE: We learnt in the previous chapters that the Ministers do not have security of tenure and they hold the office during the pleasure of the President).

So far how many judges of Supreme Court have been removed? No Supreme Court judge was removed so far in independent India.

STRENGTH OF SUPREME COURT

The original strength (1950) of the Supreme Court was eight judges. This includes one Chief Justice of India (CJI) and seven other judges.

The strength was increased to ten (10) in the year 1956.

And then again it was increased to thirteen (13) in the year 1966.

It was further increased to seventeen (17) in the year 1977.

The strength was increased to twenty five (25) in the year 1986.

The present strength of Supreme Court is thirty one (31).

The Parliament of India is empowered to increase the strength from time to time.

QUALIFICATIONS OF JUDGES

  • Should be a citizen of India.
  • Should have been a judge of a High Court(s) for five (5) years.                                      (OR)
  • Should have been an advocate of High Court(s) for ten (10) years.                                       (OR)
  • Should have been a distinguished jurist in the opinion of the President.

(Note: The Constitution has not prescribed a minimum age for appointment of a judge of the Supreme Court).

APPOINTMENT OF JUDGES:

The judges of the Supreme Court are appointed by the President.

The Chief Justice of India (CJI) is appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President deems necessary.

The other judges are also appointed by the President after consultation with the Chief Justice of India and such other judges of the Supreme Court and the High Court as the President deems necessary.

(IMPORTANT: While appointing the other judges of the Supreme Court the consultation with the Chief Justice of India is obligatory for the President).

From the year 1950 to 1973 a practice has been established that the senior most judge of the Supreme Court is appointed as the Chief Justice of India.

The convention was violated in the year 1973 when A N Ray was appointed as the CJI by superseding three senior judges.

In the year 1977 M U Beg was appointed as the CJI by superseding the then senior most judge of the Supreme Court.

In the year 1993 in the second judges case the Supreme Court ruled that that the senior most judged of the Supreme Court alone be appointed as the CJI.

Oath

Oath of office is administered by the President of India.

In the absence of the President some other person appointed by the President would perform the same.

TENURE (TERM):

A judge holds the office till he/she attains the age of 65 years.

SALARY

The salaries, privileges, leaves and pensions of the Supreme Court are determined by the Parliament from time to time.

At present the salary of the Chief Justice of India is Rs. 1, 00,000/- (One Lakh).

The Salary of other Judge of the Supreme Court is 90,000/- (Ninety Thousands).

RESIGNATION

A judge submits the resignation to the President of India.

IMPEACHMENT OR REMOVAL

A judge of the Supreme Court can be removed through impeachment.

A judge can be removed from the office by the President on the recommendation by the Parliament.

There are two grounds that are mentioned in the Constitution for the removal of judge of the Supreme Court.

Proved Misbehavior     (OR)        Incapacity.

The removal procedure of a Judge of the Supreme Court is initiated either in the Lok Sabha or in the Rajya Sabha.

If the procedure begins in Lok Sabha.

  • A removal motion of a Supreme Court judge is signed by 100 members in the case of Lok Sabha.
  • The signed removal motion is to be given to the Speaker.
  • The speaker may admit or refuse to admit the same.
  • If it is admitted the speaker constitutes a committee to investigate into the charges.
  • The committee should consist of
  • the CJI (OR) a judge of the Supreme Court
  • a chief justice of a high court
  • A distinguished jurist.

If the committee finds the judge to be guilty of or suffering from incapacity the Lok Sabha can take up the consideration of the motion.

After it is passed in Lok Sabha with a special majority the motion is presented to the Rajya Sabha.

If it is also passed in the Rajya Sabha with a special majority an address is presented to the President for the removal of the judge.

The President passes an order removing the judge.

If the procedure begins in Rajya Sabha.

  • A removal motion of a Supreme Court judge is signed by 50 members in the case of Rajya Sabha.
  • The signed removal motion is to be given to the Chairman.
  • The Chairman may admit or refuse to admit the same.
  • If it is admitted the Chairman constitutes a committee to investigate into the charges.
  • The committee should consist of
    • the CJI (OR) a judge of the Supreme Court
    • a chief justice of a high court
    • A distinguished jurist.
  • If the committee finds the judge to be guilty of or suffering from incapacity the Rajya Sabha can take up the consideration of the motion.
  • After it is passed in the Rajya Sabha with a special majority the motion is presented to the Lok Sabha.
  • If it is also passed in the Lok Sabha with a special majority an address is presented to the President for the removal of the judge.
  • The President passes an order removing the judge.

MISCELLANEOUS:

Under Article 121 of the Indian Constitution no discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a high Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge.

In the absence of the CJI the President can appoint a judge of the Supreme Court as an acting CJI.

The CJI can appoint a judge of a High Court as an ad hoc (temporary) judge of Supreme Court. (This can be done by the CJI only with the prior permission of the President).

The CJI can request a retired judge of the Supreme Court or High Court to act as a judge of the Supreme Court for a temporary period of time.

The Supreme Court of India is located in Delhi.

The CJI can set up the Benches of the Supreme Court of India in other places of the Country by the CJI with the prior permission of the President.

The Constitutional cases or references made by the President under article 143 of the Constitution are decided by a bench consisting of at least five judges.

All other cases are usually decided by a bench consisting of not less than three judges.

The Supreme Court is also a court of records. The judgments of the Supreme Court are admitted to be of evidentiary value and cannot be questioned when produced before any court. Secondly, the Supreme Court has also got the power to punish for the contempt of court.

The Judicial review is the power of the Supreme Court to examine the constitutionality of legislative enactments and executive orders of both the central and state governments.

The judicial review is needed to uphold the principle of the supremacy of the Constitution, to maintain the concept of federalism (balance between the central and state governments) and also to protect the fundamental rights of the citizens

: The words “Judicial Review” is not mentioned in the Constitution.

The Supreme Court used the power of judicial review in

  • Golaknath Case                         –          1967
  • Bank Nationalization case         –          1970
  • The Privy purses abolition case –           1971
  • The Kesavananda Bharti case   –          1973
  • The Minerva Mills case              –           1980

The Supreme Court is the ultimate interpreter of the Constitution.

The election disputes related to the the President and Vice President can be challenged only in the Supreme Court and the decision of the Supreme Court shall be final. 

THE COMMITTEE OF INQUIRY: This is constituted by the Speaker or Chairman under judges Inquiry Act.

A Constitution Amendment bill (Private) was introduced in RS by a nominated member H K Dua to relook at the law to prevent a judge from resigning till any impeachment motion process is completed. As happened in the case of Calcutta HC Justice Soumitra Sen in 2011 (later withdrawn after assurance is given by the law Minister)

Under Articles 124 (2) and 217 (1) if a judge submits resignation to the President even while facing impeachment the resignation will automatically comes into effect and the impeachment proceedings will abruptly come to an end. Even if one house passes a resolution for the removal and the other House will not take it up for discussion.

Soumitra Sen (Judge of Calcutta High Court) resigned after a resolution is passed in the Rajya Sabha and before it reaches the Lok Sabha.

Similarly P D Dinakaran resigned when a committee of Inquiry constituted by the Chairman of RS. Hence both judges escaped scrutiny of their conduct by the Parliament and likely to be removed by the President.

The present lacuna is that once a judge resigns it is taken as accepted and President has no role to play.

MISCELLANEOUS:

In December 2012 the CJI Altamas Kabir gave the necessary clarifications to the PMO on elevating the 2 CJs of High Courts (M Y Eqbal – Madras and V Gopalagowda –Madras) to the SC. The PMO sought the clarifications following certain complaints received by the PMO. The PMO wanted to ascertain whether the allegations were addressed by the SC Collegium before recommendations were made for elevation of the 2 judges. The CJI said recommendations were made after considering all aspects.

Fast Track Courts: The 11th Finance Commission recommended for the establishment of 1734 fast track courts in the country for the disposal of long pending sessions and other cases. It is the primary responsibility of the State Governments to establish these courts in consultation with the concerned High Court.

DAM 999: (On January 24, 2013 the SC upheld the ban imposed by the TN government on the release of the movie DAM 999. The TN government banned the movie on November 24, 2011 alleging that the film was based on the Mullaperiyar dam dispute between Tamil Nadu and Kerala. The film was released in entire country except Tamil Nadu. SC said that the Court cannot ignore the apprehensions raised by the state and consider only the individual rights. We cannot close our eyes to the objections raised by the state and decide the case purely on legal aspects and we have to respect the sentiments of the people. 

The SC on January 18, directed all the states not to grant permission for erecting statues or construction of any structure at public places or on highways which would obstruct traffic.

India may be among the few countries in the world where judges appoint themselves. This practice started after 1993, replacing the system of government picking judges for higher judiciary comprising Supreme Court and 24 High Courts. 

JANUARY 30, 2014:

The Supreme Court cleared the decks for the trail of the Chief Minister of Tamil Nadu Jayalalithaa for her prosecution that was initiated by the Income Tax Department for non filing of incom4e tax returns during 1991-93 by sasi enterprises and by herself as partner for 1993-94. 



JANUARY 30, 2014:

The killers of Rajiv Gandhi (the former PM) Murugan, Santhan  and Perarivalan who were convicted pleaded the Supreme Court for commutation of their death sentence to life imprisonment citing the inordinate delay in the disposal of their mercy petition by the former President Pratibha Patil. 

The Madras High Court on August 30, 2011 stayed their execution. In May 2012 the Supreme Court transferred the case to itself. 

MARCH 10, 2014: The Apex court ordered the trail courts for the completion of trail against members of both the Houses of the Parliament and State legislatures with in 1 year from the date of framing of the charges against them. If the court cannot complete the trail within one year because of any reason the court must explain the reasons to the Chief Justice of the concerned High Court.

  July 7, 2014: The Supreme Court on Monday ruled that fatwas have no legal sanction. It declared that no legal status has been granted to the Sharia courts. The apex court said that either Darul Qaza or any mufti cannot issue fatwas and try to enforce against a person who has not approached for religious opinion.The apex court said that the religion or faith cannot be used to victimize innocents.The Supreme Court said no law has given any recognition to fatwas.