Supreme Court

Indian constitution has established an integrated judicial system with the Supreme Court at the top and the high court below it. Below the HC, there is a hierarchy of subordinate courts. This single system of courts, adopted from the government of India Act of 1935, enforces both central laws as well as the state laws.

In USA, however, both federal and state laws are enforced by different courts- one at the federal level and the other at state level. The SC in India was established as the federal court under the provisions of the GoI, 1935.

Article 124 to 147 in Part V of the constitution deal with the organization, independence, jurisdiction, powers and procedures of the SC. The parliament is authorized to regulate them.

Appointment of Judges

• The judges of the SC are appointed by the President
• The chief justice is appointed by the president after consultation with such judges of the SC and high court as he deems necessary
• The other judges of the SC are appointed by President after consultation with the chief justice and such other judges of the SC.
• The consultation with chief justice is obligatory in the case of appointment of a judge other than Chief Justice

Evolution of Collegium System

• The Collegium System is a system under which appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.’ There is no mention of the Collegium either in the original Constitution of India or in successive amendments.
• How collegium system was born?

1. First judges case (1982): The court held that consultation does not mean concurrence and it only implies exchange of views
2. Second judges case (1993): The court reversed its earlier ruling changed the meaning of the word consultation to concurrence. Hence, it ruled that the advice tendered by the CJI is binding on the President in matters of appointment of SC judges. But any such advice would be tendered after CJI consults with two of his most senior-judges. It was also decided in the case that President should appoint the senior-most judge in the SC as the CJI.
3. Third judges case (1998): The consultation process to be employed should be based on plurality of judges. He should consult a collegium of four senior-most judges before making a recommendation to the President and even if two judges give an adverse opinion, he should not send the recommendation to the President

Qualification, Oath, Tenure and Salary of Judges

Qualification of judges

1. He should be a citizen of India
2. He should have been judge of a high court for five years; or He should have been an advocate of a high court for ten years
3. He should be distinguished jurist in the opinion of the President

Oath: It is administered by the President of India or some person appointed by him for this purpose

Tenure of judges

• He holds office until he attains the age of 65 years. Any questions pertaining to his age will be determined by such authority as decided by Parliament
• He can resign his office by writing to the President
• He can be removed from his office by the President on the recommendation of the Parliament

Salaries and allowances of the judges

• They are determined by the parliament
• The salaries and emoluments of the judges cannot be varied to their disadvantage after their appointment except during the financial emergency

Removal of Judges

A motion support removal must be supported by 100 LS / 50 RS members. The presiding officer may or may not admit it. If admitted an inquiry committee of Chief justice of India or a Supreme Court judge; Chief justice of high court and distinguished jurist checks if judge is guilty; if the committee finds the judge guilty then parliament can pass a motion by special majority in both houses.

An address supported by this motion must be presented to the president on the same day. Then by a presidential order the judge can be removed.

Acting Chief Justice

• President can appoint an acting chief justice of India when:

1. The office of CJI becomes vacant
2. CJI is temporarily absent
3. CJI is unable to perform the duties of his office

Seat of the Supreme Court

• Delhi is the seat of the SC as per the constitution
• However, the constitution empowers the CJI to declare other cities as seat of the SC with the prior permission of the President of India

Ad hoc Judges and Retired Judges of Supreme Court

Ad hoc judge

• When there is a lack of quorum, the CJI can appoint a judge of high court to the SC bench
• Such a step can be taken only with the prior permission of the President and consultation with the CJ of the concerned high court
• While performing this duty, the newly appointed judge receives the salary, powers and privileges of a judge of the SC

Retired judges

• CJI can request a retired judge of the SC or retired judge of the HC to act as a judge of the SC for a temporary period
• He can take this step after getting consent from the President of India and also of the person to be so appointed
• The appointed person in this case will receive such salary and allowances as determined by the President of India

Independence of the Supreme Court

• Security of Tenure: Once appointed, the judges cannot be removed from the office except by an order of the President and that too on the ground of proven misbehavior and incapacity (Articles 124 and 217).
• The salaries and allowances of the judges are fixed and are not subject to a vote of the legislature.
• Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them.
• No discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties.
• Both the Supreme Court and the High Court have the power to punish any person for their contempt.

Jurisdictions and Powers of Supreme Court

The scope of powers of Supreme Court to hear and decide cases is called its jurisdiction. The Supreme Court has three types of jurisdictions namely original, appellate and advisory.

1. Original jurisdiction: There are certain cases which fall within the exclusive jurisdiction of the Supreme Court. It means that all such cases begin or originate in the Supreme Court, only. It also means that such cases cannot be initiated in any other court. The cases or disputes that come under the original jurisdiction are given below:

• Disputes between the Government of India on the one side and one or more States on the other side.
• Disputes between the Government of India and one or more States on one side and one or more States on the other side.
• Disputes between two or more States.

However, this jurisdiction does not extend in the following situations:

• A dispute arising out of any pre-Constitution treaty, agreement, covenant, engagement, sanad or other similar instrument.
• A dispute arising out of any treaty, agreement, etc., which specifically provides that the said jurisdiction does not extent to such a dispute.
• Inter-state water disputes.
• Matters referred to the Finance Commission.
• Adjustment of certain expenses and pensions between the Centre and the states.
• Ordinary dispute of Commercial nature between the Centre and the states.
• Recovery of damages by a state against the Centre.

Writ Jurisdiction:

• SC is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.
• The aggrieved citizen can approach the SC directly and not as a way of appeal
• However, this jurisdiction is not exclusive to the SC since the constitution empowers the HC to also issue write
• Also, the writ jurisdiction of the SC is narrower than HC since HC can issue writs even for the enforcement of legal rights while SC can only issue them when an individuals’ fundamental right has been violated

Appellate jurisdiction: It appears appeals against the judgment of lower courts. It enjoys a wide appellate jurisdiction

Appeals in civil cases

• Disputes relating to property, marriage, money, contract and service etc are called civil cases. If a civil case involves a substantial point of law of public importance needing interpretatation of the Constitution or law, an appeal against the High Court decision can be made to Supreme Court.
• Earlier the financial limit of such civil cases was Rs. 20,000/ – but now according to the 30th Amendment of 1972, there is no minimum amount for taking a civil appeal to the Supreme Court. If substantial question of interpretation of law or Constitution is involved, appeal may be made against the decision of the High Court.

Appeals in criminal cases: An appeal may be brought to the Supreme Court against a High Court decision in a criminal case in a number of situations.

• Firstly, if a High Court sets aside an appeal or an order of acquittal passed by a lower court and awards death sentence to the accused, he may bring an appeal to the Supreme Court by right.
• Secondly, appeal can also be made to the Supreme Court if the High Court withdraws a case from a lower court to itself, declares the accused guilty and awards death sentence. In this situation also appeals can be made as a matter of right and without certificate from the High Court.
• The appeal in cases other than these two categories may also be brought to the Supreme Court provided the High Court grants a certificate that the case is fit for appeal to the Supreme Court. In case where the High Court refuses to certify a case to be fit for appeal to the Supreme Court, one may seek special leave to appeal from the Supreme Court itself. The Supreme Court may grant such a special leave in its discretion but only in rare cases.

Appeals in constitutional cases

• A constitutional case is neither a civil dispute, nor concerning a crime. It is a case arising out of different interpretations of Constitution, mainly regarding the fundamental rights. In such Constitutional Cases an appeal can be taken to the Supreme Court only if a High Court certifies that the matter in dispute involves a substantial question of law.
• If the High Court denies a certificate of fitness to appeal to the Supreme Court, the Supreme Court can use its discretion and grant special leave to appeal to itself in any case it deems fit.

Appeal by special leave: SC is authorized to grant in its discretion special leave to appeal from any judgment in any matter passed by any court or tribunal in the country (except in the case of military tribunal). Some of the aspects related to this power are:

• It is a discretionary power and hence cannot be claimed as a matter of right
• It can be granted in any judgment- final or interlocutory
• It can be related to any matter
• It can be granted against any court (except the military tribunal)

Advisory jurisdiction: The Constitution under Article 143 authorizes the President to seek the opinion of the Supreme Court in the two categories of matters:

1. On any question of law or fact of public importance which has arisen or which is likely to arise.
2. On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instruments.

 The court may refuse to give its advice on the first matter, while it is bound to give advice in the second matter

• In case, the advice or the opinion of the Court is sent to the President, he may or may not accept it. The advice of the Court is not binding on the President. So far, whenever the Court has given its advice, the President has always accepted it.

Court of Record

• It entails recording the judgments, proceedings and acts of high courts for perpetual memory.
• It has power to punish for contempt of court. This power can be exercised even in cases where contempt has been shown towards high court or a tribunal or any other court in India

Contempt of Court:

While the basic idea of a contempt law is to punish those who do not respect the orders of the courts, in the Indian context, contempt is also used to punish speech that lowers the dignity of the court and interferes with the administration of justice.

Contempt of court can be of two kinds:

1. Civil, which is the willful disobedience of a court order or judgment or willful breach of an undertaking given to a court.
2. Criminal, that is written or spoken words or any act that scandalizes the court or lowers its authority or prejudices or interferes with the due course of a judicial proceeding or interferes/obstructs the administration of justice.

Relevant provisions:

Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court respectively to punish people for their respective contempt.

Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempts of its subordinate courts.

The Constitution also includes contempt of court as a reasonable restriction to the freedom of speech and expression under Article 19, along with elements like public order and defamation.

Why courts need contempt powers?

• To ensure their orders are implemented.
• To sustain the independent nature of the judiciary itself.
• While the judiciary issues orders, they are implemented by the government or private parties. If the courts are unable to enforce their orders, then the rule of law itself will come to grinding halt.

Issues with Contempt Law:

Article 19(1)(a) of the Constitution gives the right to freedom of speech and expression to all citizens, while “contempt provisions” curb people’s freedom to speak against the court’s functioning.

The law is very subjective which might be used by the judiciary arbitrarily to suppress their criticism by the public.

Analysis of Bhushan’s case:

The suo motu contempt proceedings initiated by a bench of the Supreme Court against Mr. Bhushan constitutes an abuse of the court’s contempt jurisdiction, which—for good reason—is to be exercised sparingly and with circumspection.

It is because, according to some experts, there is nothing in Mr. Bhushan’s tweets that qualify as contempt of Court.

• His tweets are an exercise of his fundamental right under Article 19 (1) (a) to freely express himself by way of comment and criticism on the conduct of the CJI as a private citizen.
• Also, these tweets in question appear to be in the realm of perception and comment and don’t seem to have transgressed into contempt. The general principle on contempt is that one can criticize a judgment but you can’t attribute motives to the judge.

What needs to be done?

Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated.

• If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning.
• It should not be allowed to be used as a means to prevent any and all criticism of an institution.

Judicial review

Judicial review is the power of Judiciary to review any act or order of Legislative and Executive wings and to pronounce upon the constitutional validity when challenged by the affected person. The power of Judicial Review comes from the Constitution of India itself (Articles 13, 32, 136, 142 and 147 of the Constitution).

• India has an independent judiciary with extensive jurisdiction over the acts of legislature and executive. Judicial review can be defined as the doctrine under which legislative and executive actions are subject to review by judiciary. It is generally considered as a basic structure of independent judiciary (Indira Gandhi vs. Raj narain case).
• However, judicial review can be classified into three categories-reviews of legislative actions, review of judicial decisions, and review of administrative action. Therefore, it is also the duty of judges to ensure that balance of power is maintained, protect human rights, fundamental rights and citizens’ rights of life and liberty.
• Judicial review of legislative actions means the power to ensure that the law passed by legislature is in accordance with provisions contained in the constitution and in particular part 3 of constitution (principle of reading down).
• In case of judicial review of decisions, for instance, when a statute is challenged on the ground that it has been passed by legislature without authority or rights, it is for the courts to decide whether the law passed by legislature is valid or not.
• Judicial review of administrative action is a mechanism of enforcing constitutional discipline over administrative agencies while exercising their powers. Judicial review of judicial actions can be visualized in Golaknath case, banks nationalization case, privy purses abolition case, Minerva mills etc.
• As courts have wide powers of judicial review, these powers have to be exercised with great caution and control.
• The limitations of these powers are: It is only permissible to the extent of finding whether the procedure in reaching the decision has been correctly followed but not the decision itself.
• It is delegated to our superior courts only i.e. supreme court and high court Cannot interfere in policy matters and political questions unless absolutely necessary.

Judicial activism: It can be defined as a philosophy of judicial decision making where by judges allow their personal views regarding a public policy instead of constitutionalism.

Judicial activism: Positives

• Upholds Constitutional morality: An important case which employed this concept in an innovative manner was the Naz Foundation Case which used the concept of constitutional morality to strike down Section 377 of the Indian Penal Code and decriminalize homosexuality.
• Executive lacks Political gumption: Justice Chandrachud view in the Sabarimala judgment, he held that women should be allowed entry in the Sabarimala temple against popularly held religious beliefs.
• To protect fundamental rights: Triple Talaq in 2017 was banned as being ultra vires to fundamental rights of Muslim women. This legislation would not have been accepted if it had come from the executive or through the Parliament. Ex: Right to privacy also became Fundamental right under Article 21
• Most trusted institution: A People’s Survey of India report noted that Indians had 80% trust in the Supreme court. Though not an elected body, the apex court is significant to uphold rule of law. Ex: Whistle Blowers Act against corrupt officials and politicians was given under Article 142, until Parliament made a law on the subject.

Demerits: Judicial activism

• Unelected body: Judiciary being the unelected body, does not enjoy the “General Will” of the people. Judicial restraint is more apt for such an institution rather than dictation legislation. Ex: Ban on liquor sale on highways led to backlash as well as spurious means to overcome the dictum
• Lack of expertise: Judiciary lacks both time and resources to enact legislation. Sometimes practical difficulties of such enactments are not known to the courts. Ex: Ban on BS-IV vehicles from April 2020 which had to be extended many times.
• Against Constitution’s Mandate: Judicial Review is a basic structure of the Constitution; however enacting legislation is not. Courts can look into the validity of the law, but not necessarily make a law.
• Unaccountable: Politicians remain “accountable” to the people in at least some sense, because they depend upon them in order to continue in office after five years.
• Judicial adventurism: Subhash Kashinath Mahajan v. State of Maharashtra (2018): the court amended the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by annulling Section 18 which said that no anticipatory bail will be granted to persons accused under the Act.

Each organ of our democracy must function within its own sphere and must not take over what is assigned to the others. Judicial activism must also function within the limits of the judicial process because the courts are the only forum for those wronged by administrative excesses and executive arbitrariness. Hence legislation enacted by Judiciary must be in the rare cases as mentioned above.