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THE SUPREME COURT OF INDIA |
ü
The Supreme Court came into existence on January
28, 1950.
ü
It is as an integrated judicial system of Courts
that is present in India. (Federation for Legislature and executive)
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The Supreme Court is the apex court (top most in
the hierarchy) in the country.
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The High Courts are below the Supreme Court.
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Under the High Court there is a system of
subordinate courts. (District Courts and other lower courts).
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The Supreme Court is the guardian of the
Constitution.
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The Supreme Court is the guarantor and protector
of the Fundamental Rights of the citizens.
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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.
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The Judges of the Supreme Court do not hold the
office during the pleasure of the President.
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(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).
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So far how many judges of Supreme Court have been removed?
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No Supreme Court judge was removed so far in
independent India.
STRENGTH OF
SUPREME COURT:
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The original strength (1950) of the Supreme
Court was eight judges.
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This includes one Chief Justice of India (CJI)
and seven other judges.
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The strength was increased to ten (10) in the
year 1956.
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The same was increased to thirteen (13) in the
year 1966.
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It was further increased to seventeen (17) in
the year 1977.
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The strength was increased to twenty five (25)
in the year 1986.
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The present strength of Supreme Court is thirty
one (31).
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The Parliament of India is empowered to increase
the strength from time to time.
QUALIFICATIONS
OF JUDGES OF THE SUPREME COURT:
ü Should be a citizen of India.
ü Should have been a judge of a High
Court(s) for five (5) years.
(OR)
ü Should have been an advocate of High
Court(s) for ten (10) years.
(OR)
ü Should have been a distinguished
jurist in the opinion of the President.
ü (Note: The Constitution has not prescribed a minimum age for
appointment of a judge of the Supreme Court).
APPOINTMENT OF
JUDGES:
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The judges of the Supreme Court are appointed by
the President.
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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.
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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.
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(IMPORTANT: While appointing the other judges
of the Supreme Court the consultation with the Chief Justice of India is
obligatory for the President).
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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.
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The convention was violated in the year 1973
when A N Ray was appointed as the CJI by superseding three senior judges.
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In the year 1977 M U Beg was appointed as the
CJI by superseding the then senior most judge of the Supreme Court.
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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:
ü Oath of office is administered by the
President of India.
ü In the absence of the President some
other person appointed by the President would perform the same.
TENURE (TERM):
ü A judge holds the office till he/she
attains the age of 65 years.
SALARY:
ü The salaries, privileges, leaves and
pensions of the Supreme Court are determined by the Parliament from time to
time.
ü At present the salary of the Chief
Justice of India is Rs. 1, 00,000/- (One Lakh).
ü The Salary of other Judge of the
Supreme Court is 90,000/- (Ninety Thousands).
RESIGNATION:
ü A judge submits the resignation to the
President of India.
IMPEACHMENT OR REMOVAL:
ü A judge of the Supreme Court can be
removed through impeachment.
ü A judge can be removed from the office
by the President on the recommendation by the Parliament.
ü There are two grounds that are
mentioned in the Constitution for the removal of judge of the Supreme Court.
·
Proved
Misbehavior
(OR)
·
Incapacity.
ü The removal procedure of a Judge of
the Supreme Court is initiated either in the Lok Sabha or in the Rajya Sabha.
ü 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 three member committee to investigate
into the charges.
·
The committee should consist of
v the CJI (OR) a judge of the Supreme Court
v a chief justice of a high court
v A distinguished jurist.
·
If
the committee finds the judge to be guilty of misbehavior 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.
ü 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 three member committee to investigate
into the charges.
·
The committee should consist of
v the CJI (OR) a judge of the Supreme
Court
v a chief justice of a high court
v A distinguished jurist.
·
If
the committee finds the judge to be guilty of misbehavior 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:
ü
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.
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In the absence of the CJI the President can
appoint a judge of the Supreme Court as an acting CJI.
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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).
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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.
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The Supreme Court of India is located in Delhi.
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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.
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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.
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All other cases are usually decided by a bench
consisting of not less than three judges.
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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.
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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.
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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.
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Note: The words “Judicial Review” is not mentioned in the
Constitution. (Can you please think why?)
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The Supreme Court used the power of judicial
review in
v
Golaknath Case – 1967
v
Bank Nationalization case – 1970
v
The Privy purses abolition case - 1971
v
The Kesavananda Bharti case –
1973
v
The Minerva Mills case - 1980
Please Note: (All the above cases I discuss with you in a separate note under the title 'Basic structure of the Indian Constitution')
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The Supreme Court is the ultimate interpreter of
the Constitution.
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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.
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THE COMMITTEE OF INQUIRY: This is constituted
by the Speaker or Chairman under judges Inquiry Act.
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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)
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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.
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Soumitra Sen (Judge of Calcutta High Court) resigned after a resolution is
passed in the Rajya Sabha and before it reaches the Lok Sabha.
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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.
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The present lacuna is that once a judge resigns
it is taken as accepted and President has no role to play.
MISCELLANEOUS:
ü 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.
ü 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.
ü 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.
ü The SC on January 18, 2013 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.
ü
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:
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.
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.