The Judiciary The Supreme Court Class 10 ICSE notes
•The Supreme Court
Need for the judiciary
(i) To interpret the Constitution : India has a federal political system. The most important function of the judiciary is to interpret the constitution. For a stable federal government it is essential that the central and state government should act in accordance with the provisions of the constitution. If any dispute arises over the interpretation of the Constitution, it has to be settled by the judiciary.
(ii) To protect Fundamental Rights : The Supreme Court and the High Courts protect the Fundamental Rights. For the purpose of protecting the rights of the citizens, the Supreme Court and the High Court may issue Writs or directions to the concerned authorities.
(iii) To maintain the Supremacy of the Constitution : The Judiciary checks the arbitrariness of the government, protects and interprets the constitution and maintains the supremacy of the constitution. It gives a new meaning to the constitution to meet the new situation.
Single Unified Judicial System in India :
A single integrated judicial system has been adopted for the whole country. All the courts enforce the state as well as laws made by the Union Parliament. At the apex of the judicial system is the Supreme Court of India, which supervises and controls the functioning of other courts. There are no separate sets of law and a single civil and criminal system operates throughout the country. Immediately below are the State High Courts and below the High Court, there are District Courts. Appeals against the decisions of District Courts lie in the High Court and the appeals against the decisions of the High Court can be filed in the Supreme Court.
•Composition of the Supreme Court
The Number of Regular Judges
At the commencement of the Constitution, there were eight Judges, including the Chief Justice, in the Supreme Court. The Parliament can increase or decrease the number of judges as and when required. In accordance with the Act of 2008, the Supreme Court consists of the Chief Justice of India and not more than thirty other judges. A Constitutional Bench of seven Judges is required to determine the Constitutional validity of laws of the Centre or the States. For every other cause, appeal or matter, the bench consists of not less than three Judges.
Appointment of Judges
Every Judge of the Supreme Court is appointed by the President in consultation with the Union Council of Ministers, Chief Justice of India and such other Judges of the Supreme Court or High Courts as he/she may deem necessary for this purpose. The Chief Justice of India's recommendations were not binding on the government if the recommendations were made without consulting four seniormost judges of the Supreme Court.
The seniority principle is followed in the appointment of the Chief Justice by the President.
Qualifications
A Judge of the Supreme Court must be a citizen of India, and have the following other qualifications:
(a) Must have been a Judge of one or more High Courts for five successive years. Or
(b) Be an advocate of one or more High Courts for ten successive years. Or
(c) Be a distinguished jurist in the opinion of the President.
Oath of Office
Every Judge of the Supreme Court must take an Oath of Affirmation. The oath of office is administered by the President. The Judge affirms that he/she :
(a) will bear true faith and allegiance to the Constitution of India.
(b) will uphold the sovereignty and integrity of India and
(c) will perform the duties of his office without fear or favour, affection or ill-will.
Term of Office and Removal From Office
A Judge of the Supreme Court, including the Chief Justice, remains in office until he/she attains the age of sixty-five years. A Judge may resign by writing to the President. He/She may also be removed from his/her office by the President through impeachment on the ground of "proven misbehaviour or incapacity". But this is done only when an address is passed in each House of the Parliament, supported by a simple majority of the total strength of a House, and by a two-thirds majority of those present and voting in both the Houses. It is then presented to the President. This procedure is called the impeachment of a Judge.
Salaries and Allowances
The Chief Justice and other Judges of the Supreme Court are paid such salaries as may be determined by the Parliament. They are charged on the Consolidated Fund of India. As such, these are not required to be debated and voted upon by the Parliament. The salaries and allowances of the Judges cannot be varied to their disadvantage except during the operation of financial emergency in the country.
Quorum
When the Supreme Court sits to decide about a Constitutional case, it is decided by quorum. Its quorum is of seven Judges. For all other cases, the quorum consists of three Judges.
Seat of the Supreme Court
New Delhi is the seat of the Supreme Court. However, it may sit in other places, with the prior approval of the President.
•Jurisdiction Power and Functions
'Jurisdiction' is the power that a court of law exercises to carry out judgements and enforce laws.
Powers and functions of the Supreme Court are reflected in its jurisdiction, which are :
(A) Original,
(B) Appellate and
(C) Advisory
(D) Guardianship of the Constitution
(E) Administrative Functions of the Supreme Court
•Original Jurisdiction
Original jurisdiction means the authority of the Supreme Court to hear a case in the first instance directly, which extends to the following cases :
1 . (a) A dispute between the Government of India and one or more States.
(b) Disputes between two or more States and union territories.
(c) A Dispute between the Union and any State on the one side and other States on the other.
Regarding all the above disputes the Supreme Court has 'exclusive jurisdiction'. In other words, these disputes cannot be heard or decided by other courts.
2. After the 42nd Constitutional Amendment of 1976 A.D., the Supreme Court has been given the exclusive jurisdiction to determine the Constitutional Validity of the Union laws. Such cases are decided by a majority of the full Constitutional Bench of seven Judges.
3. The Supreme Court has a special jurisdiction for the enforcement of Fundamental Rights. It can issue writs of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari for this and other purposes. This is provided under Article-32, which guarantees the Right to Constitutional remedies.
4. The Supreme Court also has the exclusive and original jurisdiction to inquire into and decide all doubts and disputes in connection with the election of the President and Vice President of India.
The Supreme Court may transfer to itself cases from one or more High Courts if these involve question of law or cases of great importance. It may also transfer cases from one High Court to another in the interest of justice.
Exception : This jurisdiction shall not extend in the following :
(i) a dispute arising out of a treaty, agreement, etc., which is in operation.
(ii) in certain other matters such as inter-state water disputes, matters referred to the Finance Commission, and
(iii) adjustment of certain expenses and pensions between the Union and the States.
•Appellate Jurisdiction
The Supreme Court's appellate jurisdiction may be studied under the following heads :
1. In Constitutional Cases : Articles-132 to 135 deal with ordinary powers of the Supreme Court to hear appeals under certain conditions. Ordinarily, an appeal lies to the Supreme Court from any Judgement/final order of the High Court, concerning State law if it certifies that the case involves a "substantial question of law as to the interpretation of the Constitution". Where the High Court refuses to give such a certificate, the Supreme Court can grant a Special Leave of Appeal.
2. In Civil Matters : The 30th Amendment of the Constitution passed in 1972 A.D. provides that appeal to the Supreme Court in civil cases lies if the High Court certifies that the case involves a substantial question of law of general importance, which needs to be decided by the Supreme Court. The Supreme Court can also grant a special leave to appeal in such civil cases.
3. In Criminal Cases : In criminal cases, appeal lies to the Supreme Court as a matter of right (without a certificate of the High Court) in two types of cases of death sentence. For example :
(a) Where a lower court acquits an accused, and the High Court reverses this order and sentences the accused to death.
(b) Where the High Court withdraws a case under trial in a subordinate court, and sentences the accused to death.
Thus, it is clear that in case the accused is sentenced to death, the convicted person has a right to go in appeal to the Supreme Court.
•Advisory Jurisdiction
•The Supreme Court as a Guardian of Constitution (Revisory Jurisdiction)
•Supreme Court as a Guardian of Fundamental Rights
The Supreme Court is the guardian of the Fundamental Rights. A citizen, whose fundamental right has been violated by any individual, government or institution, may move the Supreme Court for the protection of his fundamental right. A writ is a legal instrument to enforce obedience to the orders of a court. It is a form of written command or order from a judicial authority asking a particular person or official to act or not to act in a particular way. These are issued :
(a) to protect the Fundamental Rights or for any other purpose.
(b) to any person or authority within the jurisdiction.
(c) in grave cases where the subordinate tribunal acts without proper jurisdiction or in excess of it.
(d) in cases where natural justice is violated or
(e) where there is an error of judgement. The Constitution empowers the Supreme Court and High Courts to issue the following writs or orders.
(i) Writ of Habeas Corpus : Habeas Corpus (Latin : means that you have the body) is a writ through which a person can seek relief from unlawful detention (i.e., held in police custody or prison) of himself or another person. This is an order to a person or officer who detains a person, without court's order, directing him to produce the detainee in the court and to explain why he has been detained. If the cause is insufficient, the detained person is released immediately.
(ii) Writ of Mandamus : 'Mandamus' means "we command". Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, subordinate court, corporation or public authority to perform their duties or forbear from doing some specific act.
(iii) Writ of Prohibition: The writ of Prohibition is issued to prevent an inferior court from exercising powers, with which it is not legally vested, and to direct it to remain within the limits of its jurisdiction. It is preventive in nature.
(iv) Writ of Certiorari : The writ of Certiorari means "to be informed of what is going on". It can demand from the lower court to handover the record of a particular case to a higher Court after a decision or judgement in a lower court is made. The writ of prohibition and writ of certiorari aim at restraining the inferior courts from exceeding their jurisdiction.
The writ of Prohibition is preventive as it is issued when the inferior court is hearing the matter over which it has no jurisdiction. The writ of certiorari is remedial as it is issued when the court hears the case and gives decision.
(v) Writ of Quo-warranto : The Writ of Quowarranto is issued against a person who has held an office illegally. This writ asks such a person to explain as to by what authority he held that particular office. If the court finds that the office is held unlawfully, it can declare the office vacant and direct the usurper to quit.
•Meaning and Scope of Judicial Review
Judicial Review, is the power of the Supreme Court to examine laws passed by the legislatures and the executive orders of the Centre and State governments whether these are in accordance with the Constitution or not. If the court finds a law or an order of the Executive is against the provisions of the Constitution, it can declare it null or void. The final say as to what the Constitution means rests with the Supreme Court. That is why it is known as the "Guardian and final interpreter of the Constitution."
Scope of Judicial Review
(1) Judicial Review is inherent in the Constitution itself. There is distribution of powers amongst the three organs of the government, i.e., the Legislature, the Executive and the Judiciary.
(2) Even there is a division of powers between the centre and the state. So whenever there is dispute, the Supreme Court intervenes.
(3) The Supreme Court has the power to review all Union and state laws and executive orders of the government. If any order or law is not within the frame of Indian Constitution, the court can declare it null and void.
(4) The Supreme Court is the guardian of the Fundamental Rights. It is empowered to issue various writs to protect and enforce the Fundamental Rights.
How Judicial Review is done ? The exercise of the power of the Judicial Review by the Supreme Court is done when a complaint is made to it alleging a certain law or an order, to be contrary to the Constitution. If it is proved so during the course of the proceedings, the said enactment is rendered inoperative. The minimum number of judges to hear and decide a case involving interpretation of the Constitution shall be five.
•Independence and Impartiality of Judiciary
By Independence of Judiciary, we mean its independence from the control of the Executive and the Legislature. This also means a fair, impartial, fearless and honest judiciary. It should be above favour or frown in giving its judgement and in doing its duty as a guardian of the Constitution and the rights of the people.
Reasons:
(a) It is essential for the functioning of a democratic constitution, i.e., to be neutral and impartial in dispensation of justice, even if its judgements go against the Government of India (to order punishment of officials of the Government for failure to implement its judgements or orders) and annul laws made by legislature on the grounds of their being ultra vires (exceeding the powers granted by law) of the Constitution.
(b) to safeguard the dignity of the judges or the court.
•Public Interest Litigation (PIL)
Public Interest Litigation (PIL) means litigation for the protection of public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court's jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public Interest Litigation is the power given to the public by courts through judicial activism.
Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon.
One can simply approach the Court for the enforcement of fundamental rights by writing a letter or postcard to any Judge. That particular letter based on true facts and concept will be converted to writ petition. Public Interest Litigation has proved a boon for the common man. It has set right a number of wrongs committed by an individual or by the society. By relaxing the scope of Public Interest Litigation, the Court has brought legal aid at the doorsteps of the teeming millions of Indians.
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