Friday, March 23

The Union Judiciary ie. The Supreme Court (Articles 124-147)

The Constitution of India provides for a single integrated judiciary with the Supreme Court at the apex of judicial system. The single system of courts, adopted from the Government of India Act 1935, enforces both central laws as well as state laws.

  • In USA, on the other hand, the federal laws are enforced by federal judiciary and the state laws are enforced by state judiciary.[Our constitutional makers have adopted concepts of Fundamental Rights, independence of judiciary, judicial review, removal of Supreme Court and high court judges from USA]
  • We will be discussing Indian Judiciary i.e. Supreme Court, High Courts and Subordinate Courts.

Supreme Court
The Supreme Court of India is the guardian of Indian Constitution. It was inaugurated on January 28, 1950. It succeeded the Federal court of India established under the Government of India Act of 1935. Articles 124 to 147 in Part V of the constitution deal with the organization, independence, jurisdiction, powers and procedures so on of the Supreme Court.

  • Constitution of the Supreme Court –Under article 124(1) of the constitution, there shall be a Supreme Court of India consisting of Chief Justice of India and 30 other judges.[Parliament by law can increase the number of judges]
  • Every judge of Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold the office till age of 65 years. The Judge may resign from his office by writing to the President of India.(article 124(2))
  • Article 124(3) – A person shall not be qualified to be appointed as judge of Supreme Court unless ,
  1. a) A citizen of India
    b) Has been at least 5 years judge of a High Court or of two or more such courts in succession.
    c) Has been for at least 10 years as an advocate of high court or of two or more such courts in succession.
    d) In the opinion of the President, a distinguished jurist.
  • Removal of the Judge of Supreme Court(article 124(4))–A Judge of Supreme Court shall not be removed from his office excepton the ground ,proved misbehavior or incapacity
  • The Judge of Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by majority of total membership of that house and by a majority of not less than two thirds of the members of that house present and voting, has been presented to the President in the same session for such removal.
  • No person who has held as a Judge of Supreme Court shall plead or act in any court or before any authority within territory of India (article 124(7))
  • Court of Record – The Supreme Court shall be a court of record and shall have all the powers of such a court including power for contempt of itself.(article 129)
  • Original Jurisdiction – Under article 131, original jurisdiction of Supreme Court is purely federal in character and includes functions,
  • Dispute between states and the union
  • Dispute between the states
  • Dispute between states and Union on one side and other states on the other side
  • Appellate Jurisdiction- The Supreme Court is the highest court of appeal from all the courts in territory of India, whether in a civil, criminal, or that involves substantial question of law as to the interpretation of constitution is involved(article 132)
  • Civil appellate – When a high court certifies that the case involves a substantial question of law or general importance or in the opinion of the high court, the case should be decided by the Supreme Court(article 133)
  • Criminal appellate–Under article 134, the conditions under which a high court can issue a certificate to appeal against judgment  in a criminal case are :

(a)A high court has reversed an order of acquittal of an accused person and sentenced him to death; or
(b)A high court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or
(c)That case is fit for appeal to the Supreme Court

  • Special leave jurisdiction(article 136) – The Supreme Court may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any case or matter passed or made by any court or tribunal in the territory of India
  • Advisory Jurisdiction (article 143) – 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 is expedient to obtain the opinion of Supreme Court upon it, he may refer the question to that court for consideration and the court may after such hearing as it thinks fit, report to the President its opinion there on.The President may consider the advice.
  • Writ Jurisdiction (article 32) – The Supreme Court is empowered to issue writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of fundamental rights.
  • The Supreme Court, under article 137, is empowered to review its own judgments subject to any law made by parliament in this regard
  • The Supreme Court may be given further jurisdiction or power on any matter of the union list by the parliament under its law (article 138)
  • Under article 139A, the Supreme Court can transfer to itself cases pending before the supreme court and one or more high courts or pending before two or more high courts, if cases involve substantial questions of general importance and some questions of law. In addition, the supreme court can also transfer cases from one high court to another high court if it is necessary
  • Under article 141, the law declared by the Supreme Court is binding on all courts within territory of India.

High Courts
The High Courts are at the apex of judicial system in the states. There are 24 high courts at present in our country. According to the constitution,

  • There shall be High Court for each state (article 214) and Parliament has the power to establish a common high court for two or more states (article 231)
  • High Court shall be a court of record (article 215)
  • Every high court shall consist of Chief Justice and other such judges as President of India may determine from time to time (article 216)
  • Appointment and conditions of the office of Judge of High Court (article 217)–

(1)Every judge of a high court shall be appointed by the President by warrant under his hand and seal and additional or acting Judge, until he attains the age of 62 years. Provided that,

(a)A Judge may, by writing under his hand addressed to the President, resign from his office
(b)A Judge may be removed from his office by President in the manner provided in clause (4) of article 124 for the removal of judge of the supreme court
(c)The office of a judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

A person shall not be qualified for appointment as a Judge of a high court unless he is –
(2)A person shall not be qualified for appointment as a Judge of a High Court unless he is,
(a)A Citizen of India
(b)Has for at least 10 years held a judicial office in the territory of India
(c)Has for at least 10 years been an advocate of a High Court or of two or more such courts of succession

Under this article, before appointing a High court judge the following should be consulted,

  • Chief justice of India
  • Governor of that particular state
  • Chief Justice of High Court of that state (If it is not for appointment of Chief Justice of High Court)
  • No person who after the commencement of the constitution , has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and other high courts(article 220)
  • The President may transfer a Judge from one high court to any other high court (article 222)
  • A Judge of a high courtmay be appointed by CJI, with the previous consent of President, as an ad hoc judge of Supreme Court (article 127)
  • Retired judges of Supreme court and high court, can be appointed as acting judges of supreme court by the CJI on previous consent of the President
  • The Chief Justice of a high court can appoint a retired judge of a high court as an acting judge with the consent of the President (article 224A)
  • Writ Jurisdiction of High Court (Article 226) –The writ jurisdiction of high court is wider than the writ jurisdiction of the Supreme Court under article 32, because under article 226 we can go to High court not only when our fundamental rights areviolated but also when legal rights are violated.
  • Parliament may by law extend jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any union territory (article 230)
  • Parliament may establish a common high court for two or more states or for two or more states and a union territory (article 231)
  • Every high court has power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction, excepting military tribunals (article 227)
  • The judgment given by Supreme Court is binding on all the lower courts in India. Supreme Court is not bound by its own decision. Whereas, the judgment given by a High Court has only a persuasive value on other high court. The judgment given by a high court is binding on all the lower courts in its jurisdiction.

Subordinate courts
Below the high court of a state, there is a hierarchy of subordinate courts. They function below/ and under the high court at the district and lower levels.

Appointment of district judges (article 233):The governor of a state appoints, posts, and promotes district judges in a state. For a person to be appointed as a district judge,       a) He should be a citizen of India

  1. b) Should not be already in the service of central or the state government
    c) Should have been an advocate or a pleader at least for 7 years and
    d) He should be recommended by the high court for appointment
  • Recruitment of persons other than district judges (article 234):Appointment of persons (other than district judges) to the judicial service of a state is made by the governor of the state in consultation with the State Public Service Commission and the high court.
  • Control over subordinate courts (article 235): The control over district courts and subordinate courts including posting, promotion and leave of persons belonging to the judicial service of a state and holding any post inferior to the post of district judge is vested in high court.
  • According to article 237, the constitution empowers the Governor to apply above provisions regarding subordinate courts to any class or classes of magistrates in the state.
  • Jurisdiction over Armed Forces Tribunal:In 2007 the Armed Forces Tribunal was constituted  whose appeal also lies directly to the Supreme Court.

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