Punjab State Board PSEB 11th Class Political Science Book Solutions Chapter 29 Indian Judicial System-The Supreme Court and The High Court Textbook Exercise Questions and Answers.
PSEB Solutions for Class 11 Political Science Chapter 29 Indian Judicial System-The Supreme Court and The High Court
Long Answer Type Questions
Question 1.
Describe the Composition, Jurisdiction and Powers of the Supreme Court.
Or
Discuss the composition, powers and functions of the Supreme Court of India.
Answer:
The Supreme Court established under the Indian Constitution (Art. 124-151) is the highest Judicial authority in the country. It stands at the apex of our Judicial system which is an integrated one.
All the Courts, even those functioning in the States are subject to the authority and jurisdiction of the Supreme Court. The Courts in India administer both the Federal laws as well as the State laws. Hence judiciary in India is unified.
Composition of the Supreme Court:
At the time of the commencement of the Constitution, the Supreme Court consisted of eight judges, including the Chief Justice. In 1956, the maximum number of judges was raised to eleven, including the Chief Justice. This number was again raised in 1960 to fourteen including the Chief Justice. In Dec. 1977, maximum number of judges of Supreme Court was increased from 14 to 18 including the Chief Justice. In April, 1986 the number of Judges was increased from 17 to 25. In July 2019 .the number of Judges was .increased from 30 to 33. Thus at present Supreme Court consists of Chief Justice and 33 other Judges.
Article 127 (1) makes provision for the appointment of ad-hoc judges also. Ad-hoc judges are appointed by the Chief Justice of India with the prior consent of the President from among the judges of any High Court duly qualified to be a judge of the Supreme Court for such period as may be necessary. Ad-hoc judges can be appointed only when the Supreme Court cannot continue or hold any session because of the lack of quorum.
The Constitution of India also provides for the appointment of retired judges of the Supreme Court or the Federal Court, with the prior consent of the President and his consent, on a request being made by the Chief Justice of India to sit and act as a judge of the Supreme Court at any time.
Appointment of the Judges:
The Chief Justice of India is appointed by the President in consultation with such judges of the Supreme Court and High Courts as he may deem fit. In the appointment of other judges of the Supreme Court, the Chief Justice of India must be consulted by the President. On Oct. 28, 1998, in a significant unanimous order, a nine-judge Constitution Bench of the Supreme Court held that recommendations made by the Chief Justice of India on the appointment of judges to the Supreme Court without following the consultation process was not binding on the government.
The consultation process to be adopted by the Chief Justice requires consultation of four seniormost judges of the Supreme Court. The sole opinion of the Chief Justice does not constitute consultation process. Hence recommendations made by the Chief Justice without complying with the norms and guidelines regarding the consultation process are not binding on the government.
The Supreme Court made it clear that even if two judges give an adverse opinion the Chief Justice should not send the recommendation to the government. The Supreme Court said, “The collegium should make the decision in consensus and unless the opinion of the collegium is in confirmity with that of the Chief Justice, no recommendation is to be made.”
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Qualifications for appointment of Judges:
A candidate for appointment as a Judge of the Supreme Court must fulfil the following qualifications:
- He should be a citizen of India.
- Must have been a Judge of one or more High Courts for five successive years or must have been an advocate of one or more High Courts for ten successive years.
- If in the opinion of the President, he is a distinguished jurist.
Term of office:
Judges of the Supreme Court hold office till they complete the age of 65 years. In case of any discrepancies about the age of a Judge, the decision of the President shall be final. A Judge may resign his office by writing to that effect to the President before the completion of his tenure. On January 13, 1983, Mr. Justice Baharul Islam resigned as a judge of the Supreme Court. A judge of the Supreme Court can be removed from his position only as the ground of proved misbehaviour or incapacity.
The Judge can be removed from office by the President after an address by each House and by a majority of not less than two-thirds of the members of that House present and voting. On 11th May, 1993, the first-ever impeachment motion against a Supreme Court judge failed in the Lok Sabha when the Opposition—sponsored move for removal of Mr. Justice V. Ramaswami could not be carried for want of requisite majority after the ruling Congress en bloc abstained from voting.
Salaries and Allowances of Judges:
he Chief Justice gets a salary of Rs. 2,80,000 per month and the other judges Rs. 2,50,000 per month. Every Judge of the Supreme Court is entitled without payment of rent to the use of an official residence. The judges are also allowed travelling allowances when they undertake journey for the performance of their official duties. The salaries and allowances of the Judges are charged on the Consolidated
Fund of India and accordingly, are not subject to the vote of Parliament.
Neither the privileges nor the allowances of a Judge nor his rights in respect of leave or absence or pension shall be varied to his disadvantage after his appointment. The salaries and allowances of the Judges can be reduced by the President during continuance of a Proclamation of Financial emergency. The Constitution, thus, guarantees to the Judges both security of service and emoluments.
Prohibition of practice after retirement:
The retired judges of the Supreme Court are debarred from pleading before any Court in India. Even if a Judge resigns he is debarred from pleading. However, the retired judges can be invited to act as judges of the Supreme ’Court for some particular business or period of time. No retired judge of the Supreme Court can he asked to act as a judge of the Supreme Court without his consent. Such judges get allowances and not salary. Their allowances are determined by the President.
Oath:
On asssuming office, each judge of the Supreme Court has to make and subscribe before the President or before any other person appointed by the President for the purpose, to an oath or affirmation according to a set form.
Immunities of Judges:
In order to further safeguard the independence of judiciary, the Constitution provides that there can be no discussion in Parliament on the conduct of a judge in the discharge of his official duties. Nor can the actions and decisions of the Judges in their official capacity be subject to criticism so as to impute motive of any kind. There may be academic discussion about the decision of the Supreme Court. The Court may also initiate contempt proceedings if an attempt, direct or indirect, is made to prejudice minds of judges in arriving at an impartial and independent decision.
Seat of the Supreme Court:
The Supreme Court sits in Delhi. It can also sit at any other place or places as the Chief Justice of India may appoint from time to time with the approval of the President. Under this Article, the Supreme Court had held its sessions at Hyderabad and Srinagar.
Jurisdiction and Functions of Supreme Court.
The Supreme Court is the highest Court of the land. It has been vested with wider jurisdiction than any other superior Court in any part of the world. According to Sir Alladi Krishnaswami Ayyar, “The Supreme Court in the Indian Union has more powers than any Supreme Court in any part of the world.”
The jurisdiction of the Court may be divided into three categories-Original, Appellate and Advisory.
1. Original Jurisdiction:
Original jurisdiction means cases which start in the Supreme Court and regarding which the Supreme Court has the exclusive jurisdiction. The Constitution of India divides powers between Centre and States. Howsoever neatly the powers between the two may have been distributed there are always possibilities of doubt and dispute. New situations demand new interpretations. Thus, the Supreme Court decides cases
- between the Government of India and one or more States;
- between the Government of India and any one State or States on one side and one or more other State on the other; or
- between two or more States.
It should be noted that the Supreme Court can entertain such cases only if the disputes involve any question, whether of law or fact, on which the existence or extent of a legal right depends. Where the claim made by one of the parties is not dependent on law but on legal considerations, the Supreme Court has no original jurisdiction.
According to the Constitution, the original jurisdiction of the Supreme Court does not extend to disputes relating to water of inter-state rivers or river valleys, matters referred to the Finance Commission and adjustment of certain expenses between the Union and the States. Likewise, the original jurisdiction of the Supreme Court shall not extend to a dispute, if the dispute arises out of provision of a treaty, agreement, covenant, engagement and other similar instrument which was entered into or executed before 26th January, 1950.
(i) Enforcement of Fundamental Rights:
The Constitution makes the Supreme Court the ultimate guardian of the fundamental rights and liberties of the people^ Rights of the people have no meaning if they are not backed and upheld by judiciary. It is both the jurisdiction as well as the responsibility of Supreme Court to issue orders, directions and writs of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, or any of them for the enforcement of fundamental rights. However, this jurisdiction of the Supreme Court is not exclusive. State High Courts have also been given similar powers.
(ii) To decide election disputes of the President and Vice-President:
The Supreme Court is also empowered to decide any dispute relating to the election of the President or the Vice-President of India and in this regard the Supreme Court’s decision is final and binding. In 1967, election of Dr. Zakir Hussain and in 1969 the election of President V. V. Giri was challenged in the Supreme Court. The Court decided that the election was valid. Similarly Vice-President, G.S. Pathak’s election was challenged and the Supreme Court upheld his election.
But by 39th amendment the Supreme Court was deprived of this power and Parliament was empowered to enact Legislation to set up a forum to hear disputes relating to the election of the . President, Vice-President, Prime Minister and the Speaker. In June 1977, Parliament enacted a law by which Supreme Court is again given power to hear election disputes of the President, Vice-President, Prime Minister and the Speaker. According to 44th Amendment all doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court and the decision shall be final. ,
2. Appellate Jurisdiction:
The Appellate jurisdiction of the Supreme Court can be divided into the following main parts-Constitutional, Civil and Criminal.
(i) Appeal in Constitutional Cases:
Article 132(1) provides that an appeal shall lie to the Supreme Court from any judgement, decree or final order of a High Court in India whether in a civil, criminal or other proceeding, if the ‘ – High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. Even if the High Court refuses to give such a certificate, the Supreme Court can grant special leave to appeal if the Court is satisfied that the case involves a Substantive question of law as to the interpretation of the Constitution.
(ii) Appeal in Civil Cases:
As regards appeals in Civil Cases, the 30th Amendment, 1972 has brought significant changes. Prior to the. 30th amendment, appeal to the Supreme Court in civil proceeding against a judgement, decree or final order of a High Court certified that the amount or value of the subject matter of the dispute was not less than Rs. 20,000.
The 30th amendment seeks to do away with the monetary limits for invoking the appellate jurisdiction of the Supreme Court. The Amendment provides for the right to appeal to the Supreme Court on any judgement of a High Court if the case involves a substantial question of law of general importance and if in the opinion of the High Court the said question needs to be decided by the Supreme Court.
(iii) Appeal in Criminal Cases. As regards criminal cases Article 134 provides that an appeal shall lie to the Supreme Court from any judgement, final order or sentence in a criminal proceeding of a High Court if
(а) the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
(b) 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) certifies that the case is fit for appeal to the Supreme Court. Under the Constitution, Parliament may by law widen still further the criminal jurisdiction of the Supreme Court.
44th Amendment inserts a new Article 134 A to provide that the High court should consider the question of granting of certificate immediately on the delivery of the judgement, decree, final order, or sentence concerned on the basis of an oral application by a party or, if the High Court deems it fit so to do, on its own motion.
(iv) Special Leave to Appeal:
Article 136 of the Constitution vests the Supreme Court with a power which is of utmost importance. It provides that the Supreme Court may, in its directions grant special leave to appeal from any judgement, decree determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. The only exception to this all embracing power of judicial superintendence is the decision of any court constituted under any law relating to the Armed Court which can grant special leave to appeal even if the High Court has refused to grant certificate to appeal to the Supreme Court.
3. Axtvisory Jurisdiction:
Under Article 143 of the Constitution, the Supreme Court exercises advisory or consultative functions also. Art. 143 provides that 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 public importance, he may refer the question to the Supreme Court for consideration and opinion. Such a question is heard by a Bench consisting of at least five judges and the Court follows the procedure of an ordinary trial.
The majority opinion is sent to the President. The judges can hold dissenting opinion as well. The opinion of the Supreme Court is not binding on the President as it is not of the nature of a judicial pronouncement. Nor is it obligatory for the Supreme Court to give its opinion. It may or may not.
4. Interpretation and Protection of the Constitution:
The Constitution of India has placed this responsibility of interpreting the Constitution on the Supreme Court. The Supreme Court is the final authority to interpret the meaning and intent of the Constitution. Likewise, it is the responsibility of the Supreme Court to uphold the supremacy of the Constitution.
There are many instances where the Supreme Court exercised its power of judicial review. In 1967 in Golak Nath’s case, the Supreme Court declared that the Parliament has no power to amend the provision of Fundamental Rights. In the Bank Nationalisation case, the Court held that the Banking Companies Act, 1969 violated equality before law. Article 19 concerning right to acquire, hold and dispose of property and Article 31 regarding compulsory acquisition of property are invalid and unconstitutional. The 24th and 25th amendments were challenged by Keshvananda Bharati and others.
In this case Supreme Court reversed its earlier decision of Golak Nath’s case and gave the Parliament the power to amend the Fundamental Rights. On 9th May, 1980 the Supreme Court struck down Section 55 of the 42 and Amendment Act 1976 which gave unlimited powers to Parliament to amend the Constitution.
The Court in an order said section 55 of the 42nd Amendment Act which inserted sub-sections (4) and (5) in Article 368 (amending power of Parliament) was beyond the amending power of Parliament and was void since it removed all limitations on the power of Parliament to amend the Constitution in such a manner as to destroy its basic or essential features or its basic structure. The Supreme Court also struck down Section 4 of the 42nd Amendment Act amending Article 31-C giving primacy to Directive Principles of State Policy over Fundamental Rights.
5. Court of Record:
The Supreme Court is the Court of Record. The significance of a court of record is two fold: First, the records of the Supreme Court are admitted to be of evidentiary value and are not questioned when they are produced before any Court. Secondly, it has the power to fine and imprison for contempt of its authority.
6. Power Regarding Transference of Cases:
By 42nd Amendment a new article 139-A is inserted in the Constitution. According to article 139A if on the application of the Attorney General of India, the Supreme Court is satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial question of general importance, the Supreme Court may withdraw the case or cases itself. The Supreme Court is also empowered to transfer any case, appeal, or other proceedings pending before any High Court to any other High Court.
7. Power to Review its own Decisions:
The Supreme Court has the power to review its own decisions. In other Words, the Supreme Court is not bound by its own decisions. Any such review is undertaken by a larger Bench than the one which passed the original judgement. The Supreme Court’s power to review its earlier decisions helps to correct any decision which may be erroneous. In 1971 in the case of Keshvanand Bharati Supreme Court reversed its judgement of Golak Nath’s case and gave the Parliament the power to amend the Fundamental Rights but Parliament has no power to change the basic structure of the Constitution.
8. Miscellaneous Functions:
The Supreme Court performs some miscellaneous functions also. They are as follows:
- The Supreme Court is the highest court of the land. It has the power to inspect and supervise the working of the subordinate courts. It can also make rules for their efficient working.
- The Supreme Court can also make rules for the persons practising before the Court.
- The Supreme Court can make rules for the maintenance of records by the lower Courts.
- The Supreme Court has the power to initiate contempt proceedings against any alleged offender indulging in malicious and tendentious criticism. It can fine and imprison anybody for contempt of its authority.
- For the enforcement of its decrees and orders, the Supreme Court can issue appropriate directions. It is the constitutional duty of all the civil and judicial authorities in the territory of India to act in aid of Supreme Court.
Position of the Supreme Court in India:
The power and jurisdiction of the Supreme Court of India, if not wider than the jurisdiction of the Supreme Courts of other countries of the world, is not lesser than the power of the Supreme Courts of other countries of the world. In the words of Alladi Krishnaswami Ayyar, “The Supreme Court in the Indian Union has more powers than any other Supreme Court in any part of the world.” The Supreme Court of India has been given vast powers by the Constitution. The decisions of the Supreme Court are binding on all the courts, and on all the authorities-Central as well as States.
In some matters it has original jurisdiction while in others it has appellate jurisdiction. Its power to grant special leave to appeal against any judgement, decree, sentence or order in any case or matter passed or made by any Court or Tribunal (except Military Tribunal) is not subject to any Constitutional limitation. This is the extraordinary jurisdiction of the Supreme Court and it extends to all cases and all matters, Civil, Criminal or otherwise. Then, the Supreme Court is the interpreter and the guardian of the Constitution. It is the final authority to interpret the Constitution.
What the Constitution means the judges say it. The Supreme Court is also the protector of the fundamental rights of the people. While interpreting Article 13 of the Constitution in the Golak Nath case, the Supreme Court held that Parliament of India has no power to curtail or abridge the rights of the people guaranteed in Part IIP of the Constitution. The Supreme Court can set aside any law or executive order which encroaches upon the rights of the people. In this way, the Supreme Court holds Executive and Legislature in check.
While interpreting the Constitution and laws, the Supreme Court, in an indirect manner, makes new laws. In December, 1982 the Supreme Court upheld the rights of the workers to be heard in the winding up proceedings of a Company. The Supreme Court’s verdict breaks new ground in the history of Jurisprudence in this country in as much as it seeks to interpret old laws in the context of the new social and political milieu.
Commenting upon the role of the Supreme Court, Sir Alladi Krishnaswami Ayyar said, “The future evolution of the Indian Constitution will thus depend to a large extent upon the work of the Supreme Court and the direction given to it by that Court.” In the words of M.V. Pylee: “The combination of such wide and varied powers in the Supreme Court of India makes it not only the supreme authority in the judicial field but also the guardian of the Constitution and law of the land.” Surely, the powers of the Supreme Court are wide and formidable.
Question 2.
Discuss in brief the powers of the Supreme Court of India.
Or
Discuss the powers and jurisdiction of the Supreme Court of India.
Answer:
The Supreme Court is the highest Court of the land. It has been vested with wider jurisdiction than any other superior Court in any part of the world. According to Sir Alladi Krishnaswami Ayyar, “The Supreme Court in the Indian Union has more powers than any Supreme Court in any part of the world.”
The jurisdiction of the Court may be divided into three categories-Original, Appellate and Advisory.
1. Original Jurisdiction:
Original jurisdiction means cases which start in the Supreme Court and regarding which the Supreme Court has the exclusive jurisdiction. The Constitution of India divides powers between Centre and States. Howsoever neatly the powers between the two may have been distributed there are always possibilities of doubt and dispute. New situations demand new interpretations. Thus, the Supreme Court decides cases
- between the Government of India and one or more States;
- between the Government of India and any one State or States on one side and one or more other State on the other; or
- between two or more States.
It should be noted that the Supreme Court can entertain such cases only if the disputes involve any question, whether of law or fact, on which the existence or extent of a legal right depends. Where the claim made by one of the parties is not dependent on law but on legal considerations, the Supreme Court has no original jurisdiction.
According to the Constitution, the original jurisdiction of the Supreme Court does not extend to disputes relating to water of inter-state rivers or river valleys, matters referred to the Finance Commission and adjustment of certain expenses between the Union and the States. Likewise, the original jurisdiction of the Supreme Court shall not extend to a dispute, if the dispute arises out of provision of a treaty, agreement, covenant, engagement and other similar instrument which was entered into or executed before 26th January, 1950.
(i) Enforcement of Fundamental Rights:
The Constitution makes the Supreme Court the ultimate guardian of the fundamental rights and liberties of the people^ Rights of the people have no meaning if they are not backed and upheld by judiciary. It is both the jurisdiction as well as the responsibility of Supreme Court to issue orders, directions and writs of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, or any of them for the enforcement of fundamental rights. However, this jurisdiction of the Supreme Court is not exclusive. State High Courts have also been given similar powers.
(ii) To decide election disputes of the President and Vice-President:
The Supreme Court is also empowered to decide any dispute relating to the election of the President or the Vice-President of India and in this regard the Supreme Court’s decision is final and binding. In 1967, election of Dr. Zakir Hussain and in 1969 the election of President V. V. Giri was challenged in the Supreme Court. The Court decided that the election was valid. Similarly Vice-President, G.S. Pathak’s election was challenged and the Supreme Court upheld his election.
But by 39th amendment the Supreme Court was deprived of this power and Parliament was empowered to enact Legislation to set up a forum to hear disputes relating to the election of the . President, Vice-President, Prime Minister and the Speaker. In June 1977, Parliament enacted a law by which Supreme Court is again given power to hear election disputes of the President, Vice-President, Prime Minister and the Speaker. According to 44th Amendment all doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court and the decision shall be final. ,
2. Appellate Jurisdiction:
The Appellate jurisdiction of the Supreme Court can be divided into the following main parts-Constitutional, Civil and Criminal.
(i) Appeal in Constitutional Cases:
Article 132(1) provides that an appeal shall lie to the Supreme Court from any judgement, decree or final order of a High Court in India whether in a civil, criminal or other proceeding, if the ‘ – High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. Even if the High Court refuses to give such a certificate, the Supreme Court can grant special leave to appeal if the Court is satisfied that the case involves a Substantive question of law as to the interpretation of the Constitution.
(ii) Appeal in Civil Cases:
As regards appeals in Civil Cases, the 30th Amendment, 1972 has brought significant changes. Prior to the. 30th amendment, appeal to the Supreme Court in civil proceeding against a judgement, decree or final order of a High Court certified that the amount or value of the subject matter of the dispute was not less than Rs. 20,000.
The 30th amendment seeks to do away with the monetary limits for invoking the appellate jurisdiction of the Supreme Court. The Amendment provides for the right to appeal to the Supreme Court on any judgement of a High Court if the case involves a substantial question of law of general importance and if in the opinion of the High Court the said question needs to be decided by the Supreme Court.
(iii) Appeal in Criminal Cases. As regards criminal cases Article 134 provides that an appeal shall lie to the Supreme Court from any judgement, final order or sentence in a criminal proceeding of a High Court if
(а) the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
(b) 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) certifies that the case is fit for appeal to the Supreme Court. Under the Constitution, Parliament may by law widen still further the criminal jurisdiction of the Supreme Court.
44th Amendment inserts a new Article 134 A to provide that the High court should consider the question of granting of certificate immediately on the delivery of the judgement, decree, final order, or sentence concerned on the basis of an oral application by a party or, if the High Court deems it fit so to do, on its own motion.
(iv) Special Leave to Appeal:
Article 136 of the Constitution vests the Supreme Court with a power which is of utmost importance. It provides that the Supreme Court may, in its directions grant special leave to appeal from any judgement, decree determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. The only exception to this all embracing power of judicial superintendence is the decision of any court constituted under any law relating to the Armed Court which can grant special leave to appeal even if the High Court has refused to grant certificate to appeal to the Supreme Court.
3. Axtvisory Jurisdiction:
Under Article 143 of the Constitution, the Supreme Court exercises advisory or consultative functions also. Art. 143 provides that 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 public importance, he may refer the question to the Supreme Court for consideration and opinion. Such a question is heard by a Bench consisting of at least five judges and the Court follows the procedure of an ordinary trial.
The majority opinion is sent to the President. The judges can hold dissenting opinion as well. The opinion of the Supreme Court is not binding on the President as it is not of the nature of a judicial pronouncement. Nor is it obligatory for the Supreme Court to give its opinion. It may or may not.
4. Interpretation and Protection of the Constitution:
The Constitution of India has placed this responsibility of interpreting the Constitution on the Supreme Court. The Supreme Court is the final authority to interpret the meaning and intent of the Constitution. Likewise, it is the responsibility of the Supreme Court to uphold the supremacy of the Constitution.
There are many instances where the Supreme Court exercised its power of judicial review. In 1967 in Golak Nath’s case, the Supreme Court declared that the Parliament has no power to amend the provision of Fundamental Rights. In the Bank Nationalisation case, the Court held that the Banking Companies Act, 1969 violated equality before law. Article 19 concerning right to acquire, hold and dispose of property and Article 31 regarding compulsory acquisition of property are invalid and unconstitutional. The 24th and 25th amendments were challenged by Keshvananda Bharati and others.
In this case Supreme Court reversed its earlier decision of Golak Nath’s case and gave the Parliament the power to amend the Fundamental Rights. On 9th May, 1980 the Supreme Court struck down Section 55 of the 42 and Amendment Act 1976 which gave unlimited powers to Parliament to amend the Constitution.
The Court in an order said section 55 of the 42nd Amendment Act which inserted sub-sections (4) and (5) in Article 368 (amending power of Parliament) was beyond the amending power of Parliament and was void since it removed all limitations on the power of Parliament to amend the Constitution in such a manner as to destroy its basic or essential features or its basic structure. The Supreme Court also struck down Section 4 of the 42nd Amendment Act amending Article 31-C giving primacy to Directive Principles of State Policy over Fundamental Rights.
5. Court of Record:
The Supreme Court is the Court of Record. The significance of a court of record is two fold: First, the records of the Supreme Court are admitted to be of evidentiary value and are not questioned when they are produced before any Court. Secondly, it has the power to fine and imprison for contempt of its authority.
6. Power Regarding Transference of Cases:
By 42nd Amendment a new article 139-A is inserted in the Constitution. According to article 139A if on the application of the Attorney General of India, the Supreme Court is satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial question of general importance, the Supreme Court may withdraw the case or cases itself. The Supreme Court is also empowered to transfer any case, appeal, or other proceedings pending before any High Court to any other High Court.
7. Power to Review its own Decisions:
The Supreme Court has the power to review its own decisions. In other Words, the Supreme Court is not bound by its own decisions. Any such review is undertaken by a larger Bench than the one which passed the original judgement. The Supreme Court’s power to review its earlier decisions helps to correct any decision which may be erroneous. In 1971 in the case of Keshvanand Bharati Supreme Court reversed its judgement of Golak Nath’s case and gave the Parliament the power to amend the Fundamental Rights but Parliament has no power to change the basic structure of the Constitution.
8. Miscellaneous Functions:
The Supreme Court performs some miscellaneous functions also. They are as follows:
- The Supreme Court is the highest court of the land. It has the power to inspect and supervise the working of the subordinate courts. It can also make rules for their efficient working.
- The Supreme Court can also make rules for the persons practising before the Court.
- The Supreme Court can make rules for the maintenance of records by the lower Courts.
- The Supreme Court has the power to initiate contempt proceedings against any alleged offender indulging in malicious and tendentious criticism. It can fine and imprison anybody for contempt of its authority.
- For the enforcement of its decrees and orders, the Supreme Court can issue appropriate directions. It is the constitutional duty of all the civil and judicial authorities in the territory of India to act in aid of Supreme Court.
Position of the Supreme Court in India:
The power and jurisdiction of the Supreme Court of India, if not wider than the jurisdiction of the Supreme Courts of other countries of the world, is not lesser than the power of the Supreme Courts of other countries of the world. In the words of Alladi Krishnaswami Ayyar, “The Supreme Court in the Indian Union has more powers than any other Supreme Court in any part of the world.” The Supreme Court of India has been given vast powers by the Constitution. The decisions of the Supreme Court are binding on all the courts, and on all the authorities-Central as well as States.
In some matters it has original jurisdiction while in others it has appellate jurisdiction. Its power to grant special leave to appeal against any judgement, decree, sentence or order in any case or matter passed or made by any Court or Tribunal (except Military Tribunal) is not subject to any Constitutional limitation. This is the extraordinary jurisdiction of the Supreme Court and it extends to all cases and all matters, Civil, Criminal or otherwise. Then, the Supreme Court is the interpreter and the guardian of the Constitution. It is the final authority to interpret the Constitution.
What the Constitution means the judges say it. The Supreme Court is also the protector of the fundamental rights of the people. While interpreting Article 13 of the Constitution in the Golak Nath case, the Supreme Court held that Parliament of India has no power to curtail or abridge the rights of the people guaranteed in Part IIP of the Constitution. The Supreme Court can set aside any law or executive order which encroaches upon the rights of the people. In this way, the Supreme Court holds Executive and Legislature in check.
While interpreting the Constitution and laws, the Supreme Court, in an indirect manner, makes new laws. In December, 1982 the Supreme Court upheld the rights of the workers to be heard in the winding up proceedings of a Company. The Supreme Court’s verdict breaks new ground in the history of Jurisprudence in this country in as much as it seeks to interpret old laws in the context of the new social and political milieu.
Commenting upon the role of the Supreme Court, Sir Alladi Krishnaswami Ayyar said, “The future evolution of the Indian Constitution will thus depend to a large extent upon the work of the Supreme Court and the direction given to it by that Court.” In the words of M.V. Pylee: “The combination of such wide and varied powers in the Supreme Court of India makes it not only the supreme authority in the judicial field but also the guardian of the Constitution and law of the land.” Surely, the powers of the Supreme Court are wide and formidable.
Question 3.
Describe the composition, jurisdiction and powers of the High Court.
Or
Mention briefly the powers of a State High Court.
Answer:
The Constitution of India provides for a High Court in each State. However, Parliament by law can provide a common High Court for two or more States. At present, the States of Punjab and Haryana have the common High Court, known as the Punjab and Haryana High Court. Earlier, Delhi and Himachal Pradesh were subject to the judicial jurisdiction of the Punjab High Court. Now, Delhi and Himachal have independent High Courts. The High Court is the highest court of the State. All other courts and tribunals working in a State are subject to the authority of the High Court.
Composition:
Each High Court consists of a Chief Justice and such other Judges as the President may from time to time, deem it necessary to appoint. It means that number of Judges in the State High Courts is neither uniform nor fixed. The total strength of the State High Courts has been left to the will of the President. He can appoint as many judges of a High Court as he deems necessary. Besides the Regular Judges, the President may also appoint additional judges for a period not exceeding two years in order to clear the arrears of work. A duly qualified person may be appointed by the President as an acting Judge when a permanent Judge is absent from the duties of his office or is acting as a Chief Justice.
Appointment of the Judges:
All the Judges of a High Court, including the Chief Justice are appointed by the President of India. While appointing the Chief Justice and other judges of a High Court, the President is required to consult the Chief Justice of India and the Governor of the state. On Oct. 28, 1998 in a significant unanimous order, a nine-judge constitution Bench of the Supreme Court held that recommendations made by the Chief Justice of India on the appointments of Judges to the High Courts without following the consultation process were not binding on the government. The Chief Justice of the Supreme Court is required to consult two senior most judges of the Supreme Court. The Supreme Court Bench said that “Merit should be the predominant factor while making any recommendation for appointment as Judges and that seniority above should not be the Criteria.”
Qualifications for Appointment:
No one can be appointed a Judge of the High Court, unless:
- he is a citizen of India;
- he has held a judicial office in the territory of India for at least ten years; or
- he has been an advocate of one or more High Courts for at least ten years.
Terms of Office:
Judges of the High Court retire at the age of 62. Prior to the Fifteenth Amendment Act, they used to retire at the age of sixty. Judges can resign office earlier by writing to that effect to the President of India. The President can remove the Judge from office on the ground of proved misbehaviour or incapacity. The procedure of removal is similar to the one used in the removal of a Supreme Court Judge. In other words, Judges of High Courts can be removed by the President on an address of Parliament adopted separately by each House by a majority of its total membership as well as by a two-thirds majority of those present and voting. In this way, judges of High Court enjoy security of tenure similar to that of the Judges of the Supreme Court.
Salary and Allowances:
The Chief Justice of High Court gets a salary of Rs. 2,50,000 per month. Each other Judge of a High Court gets Rs. 2,25,000 per month. In addition to their salaries, they are also entitled to certain allowances. The Judges get pension after retirement. Their salaries and allowances cannot be varied to their disadvantage after their retirement, The salaries and allowances of the Judges are charged on the Consolidated Fund of the State, but their pensions are charged on the Consolidated Fund of India and are not subject to the vote of Parliament. The President is empowered to reduce the salaries of the Judges during the operation of the Proclamation of Financial Emergency.
Transfer of Judges:
According to Article 222, the President may after consultation with the chief Justice of India, transfer a Judge from one High Court to another-High Court. For example in May 1976 Justice Manohar Singh of Punjab and Haryana High Court, was appointed Chief Justice of Sikkim High Court.
Oath:
According to Article 219, every person appointed to be a Judge of a High Court in a State shall, before he enters upon his office take before the Governor of the State an oath of office on the prescribed form. The Judges have to affirm that they will bear triie faith and allegiance to the Constitution of India and will perform the duties of their office without fear or favour, affection or ill-will and will uphold the Constitution and the law.
Powers And Functions Of State High Court:
A State High Court has to perform various powers and functions. Besides the administration of Justice, they perform adminstrative functions as well. Since all the Courts working in the State are subject to the authority of the State High Court, hence the administrative functions of the High Court. The powers and functions of a High Court may be divided into two parts:
I. Judicial Powers and
II. Administrative Powers.
I. Judicial Powers:
The main responsibility of a State High Court is to administer Justice. The jurisdiction of the various High Courts under the Constitution is the same as it was before the commencement of the Constitution. This is, however, subject to the provision of the Constitution and any future law that is to be made by the appropriate legislature. The jurisdiction of the High Court may be discussed as follows:
1. Original Jurisdiction:
The original jurisdiction of the State High Court is limited.
(i) Under Article 226, every High Court has been empowered to issue writs, orders, directions including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari or any of them to any person or authority within its territory for the enforcement of the Fundamental Rights and for any other purpose. While the Supreme Court can issue orders, directions and write only for the enforcement of Fundamental Rights (Part III of the Constitution), the High Courts are empowered to issue orders, directions and writs for the enforcement of fundamental rights as well as for any other purpose.
(ii) The original jurisdiction of the State High Court also extends to matters of admiralty, probate, matrimonial, contempt of Court and cases ordered to be transferred from a lower court involving the interpretation of the Constitution to its own file.
(iii) The High Courts of Calcutta, Madras and Bombay exercise original civil jurisdictions when the amount involved is more than two thousand rupees. In criminal cases, it extends to cases committed to them by Presidency Magistrates.
(iv) The High Courts of Calcutta, Bombay and Madras have the original jurisdiction as they had before the enforcement of the new Constitution on hearing straight away cases involving the Christians and the Parsies.
2. Appellate Jurisdiction:
The appellate jurisdiction of the High Court extends to both civil and criminal cases.
- The High Court can hear appeals in civil cases if the amount involved in the case is at least Rs. 5000 or the dispute involves a property of that amount.
- The High Court can hear appeals in criminal cases in which the accused has been sentenced to four years imprisonment by the Sessions Judge.
- The Sessions Judge of a District can award death sentence in criminal cases. But such a sentence is subject to the approval of the High Court.
- The High Court can hear appeals against the decisions of the lower Courts in most of the revenue cases also.
- Any case involving the interpretation of the Constitution or law is brought to the High Court in appeal.
- Appeal in cases of income tax, sales tax etc. can be heard by the High Court.
3. Judicial Review:
Like the Supreme Court of India, the State High Courts have also been vested with the power of Judicial Review. State High Court can strike down any law of the State or any order of the executive if it violates any provision of the Constitution or curtails or takes away any of the Fundamental Rights of the people.
4. Interpretation of the Constitution:
If the High Court feels that a case under consideration of a subordinate Court involves am important question regarding the interpretation of the Constitution it can withdraw a case from the subordinate Courts. Then the High Court interprets the constitution and can decide the case or can send back the case to the subordinate Court for the decision in the light of the interpretation of the High Court.
5. Court of Record:
Like the Supreme Court of India, the State High Courts are also the Courts of Record. As a Court of Record the State High Court has all the powers of such a Court including the power to punish for contempt of itself. Then, the records of such a Court are admitted to be evidentiary value and they cannot be questioned when produced before any Court. Neither the Supreme Court nor the Legislature can deprive a High Court of its power of punishing a contempt for itself.
II. Administrative Powers:
The High Court has also to perform many administrative functions within its territorial jurisdiction. It exercises the power of superintendence and control over all courts and tribunals throughout the territory. This power of the Court, however, does not extend to Military Tribunals. The High Court is responsible to see that the subordinate Courts are working in an efficient manner and that there is no miscarriage of justice. The administrative powers of the High Court are as follows:
1. Except the Military Tribunals, all other Courts and triubunals working within the jurisdiction of the High Court are subject to the superintendence and control of the High Court.
2. The High Court can make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts.
3. The High Court can prescribe the form in which book entries and accounts shall be kept by the .officers of any Court.
4. The High Court has the power to call for return from such Courts.
5. It is the responsibility of the High Court to see that the inferior Court or tribunal exericses its jurisdiction in accordance with the provisions of laws which it has to administer. Where the inferior Court or tribunal has acted without jurisdiction and passed orders beyond its powers, the High Court may interfere.
6. According to Article 228, if the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of laws as to the interpretation of the Constitution it is empowered to withdraw the said case to itself and may either dispose of the case itself or determine the said question of law and return the case to the Court concerned along with a copy of its judgement on that point. It is the duty of that Court to give its judgement’ in accordance with the judgement of the High Court. The Constitution, thus, denies to a subordinate Court the right to interpret the Constitution.
7. The High Court may transfer a case from one Court to another Court, if it deems necessary and in the interest of Justice.
8. According to Article 219, appointments of officers and servants of High Court shall be made by Chief Justice of High Court or such other Judge or officer directed by him. The Governor may in this respect require the Court to consult the State Public Service Commission.
9. The High Court can determine the salary, allowances and other conditions of service of the staff of the subordinate Courts.
10. The High Court has the power to make rules for the promotion, leave, pension and other allowances of the judges of subordinate Courts.
11. The High Court is consulted by the Governor of a State when the latter appoints and promotes district Judges.
Position of the High Court:
In the administration of Justice, the role of the High Court is as vital as that of the Supreme Court. The High Court is the highest Court of a State. All other Courts and tribunals (except Military Tribunals) in the territory of a State are subject to the superintendence and control of the State High Court. Though the High Courts function in States, yet they are free and independent from the control of the State Governments. Neither in their composition nor in their salaries, allowances, pension and other conditions of service, do they depend on State Governments.
Judges of the High Court are appointed by the President in consultation with the governors of the States. And it should not be forgotten that State Governors are also appointed by the President. Then the High Courts are under authority of the Supreme Court. Every effort has been made to make the judiciary independent and impartial. It is gratifying to note that the High Courts have not belied the expectations of the framers of the Constitution.
Question 4.
Discuss the independence of Judiciary in India.
Answer:
To make democracy and federation successful, it is essential that judiciary should be independent and impartial. It is a special feature of the Indian Constitution that it has tried to establish an independent judiciary in the State. In India following methods have been applied to make the judiciary independent:
1. Appointment of Judges:
In India the method of the appointment of the judges is devised in such a way that only able persons could become the judges. It is the President who appoints the judges of the Supreme Court and State High Courts. But the President is not absolutely free in the making of appointment of Judges. In case of the appointment of the Chief Justice of the Supreme Court he is to consult the Chief Justice of State High Courts and he consults other Judges also. He appoints other Judges in consultation with the Chief Justice.
The Chief Justice of the High Court is appointed in consultation with the State Governor and Chief Justice of the Supreme Court. In case of the appointment of other Judges the Chief Justice of the State High Court is also consulted. The Magistrates and Sub-Judges of the subordinate Courts are also appointed through competitive examination. This way the executive cannot appoint Judges of its own accord.
2. Good Salary:
The Judges of the Supreme Courts and High Courts are given a decent salary so that they do not accept lillegal gratification to increase their income. Every effort has been made to keep them above temptation. The Judges of the Supreme Court are given a monthly salary of Rs. 2,50,000 and the Judges of the High Courts are given a monthly salary of Rs. 2,25,000. They are also provided with a rent-free bungalow. They are given a pension after retirement so that they may not face any financial difficulty in old age.
The salary, allowances and service conditions of the Judges are fixed by law by the Parliament. The salary and allowances of the Judges cannot be changed during their tenure of office to their disadvantage. The Parliament can reduce the salary of the future Judges but the salaries of the Judges vyho are in service cannot be reduced.
3. Long and Secured Tenure;
The Judges are kept in service for a pretty long period. The Judges of the Supreme Court remain in office upto the age of 65 years and Judges of the High Court remain in office up to the age of 62 years. They are not retired in young age. They gain experience and knowledge of the profession and perform their duties quite satisfactorily. The tenure of office is also secured. The executive and the legislature have not been empowered to remove the Judges on minor matters. They can’ be removed from office only if the Parliament passes a resolution by two-thirds majority in both the Houses to this effect. They can be removed only on a charge of misbehaviour or incapacity. The Judges are not in any way under the control of the legislature or the executive. They decide cases without any fear or pressure.
4. Legal Qualifications:
Legal qualifications have been prescribed to become the Judges of the Supreme Court and State High Court. Only that person can be appointed a Judge of the Supreme Court who has either practised law for 10 years in a High Court, or he has been a Judge of High Court for five years or he has been an eminent Jurist in the eyes of the President. Only that person can be appointed a Judge of a State High Court who has been an advocate of High Court of 10 years’ standing or who has held a judicial post for 10 years. Therefore an ordinary and inexperienced person cannot be appointed to the post of a judge. Moreover, a man who possesses legal qualifications can best serve as a Judge.
5. Powers:
The judiciary has been given vast powers in India. It can decide a case even against the Government of the country. An individual can move the Court if he has not got justice at the hands of the Government. In case of fundamental rights the citizens can directly go to the Supreme Court or the High Court. The Supreme Court and the High Court have the power of judicial review over the actions of the Government. If an executive or a law passed by the legislature violates fundamental rights or the provisions of the Constitution it can be declared null aiid void by the Supreme Court and the State High Court. The judiciary is free to give a decision against even the Government of India.
6. Independence of Action:
The judiciary-has been given independence in its actions. No Government official or a private individual can interfere in the working of the judiciary. When a case is under trial in a Court no individual can express his opinions regarding that case publicly. No person can criticise the Judge in connection with any case publicly. The instructions and the orders of the judiciary are to be obeyed by all the Government Officials and other private citizens. If a person shows disrespct to the Court, the Court can institute ‘Contempt of Court’ proceedings against that man, and can punish him.
7. No Practice After Retirement:
After retirement, a judge of the Supreme Court is prohibited to practise before any court or authority of India.
Conclusion:
The above mentioned facts clearly indicate that efforts have been made to make judiciary in India independent and impartial. There is no doubt that the Supreme Court and the High Court enjoy independence of action. These Courts can function without any fear Or outside pressure quite independently and impartially. But the Courts at the lower level do not enjoy that much independence.
The salaries of the Judges of the lower Courts are not so sufficient that they may not fall a prey to temptation. In the lower Courts corruption is the order of the day and the poor people cannot hope to get impartial justice. It is only the poor who so many times feel the need of moving the Court for this or that purpose but they do not have the means to move the Court. Need of the hour is to make judiciary independent at the lower level also. But our Government has not given any serious thought to this problem.
Question 5.
Write a short note on Supreme Court’s Power of Judicial Review.
Answer:
Supreme Court is the guardian and final interpreter of the Constitution. The Supreme Court is vested with the power of Judicial review. It is the power of the Supreme Court to declare any law null and void if that law violates the Constitution. Article 13, for instance, bearing the marginal headings, “laws incosistent with or in derogation of the Fundamental Rights”, laid down that all laws in force in India immediately before the Commencement of the Constitution in so far as they were inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void.
Article 13(2) clearly says, “the States shall not make any law which takes away or abridges the rights conferred by this part and law made in contravention, will be void.” It is the Supreme Court which by its judicial review will decide whether a law in connection with the fundamental rights is void or not. The Court has the power of Judicial review where a citizen moves for the enforcement of the fundamental rights under article 32(2) of the Constitution. When the Court is so moved, it will have to decide whether any legislation or executive action of the Union or of a state, violates a fundamental right, and if so it will “issue directions or orders or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.”
Under Article 245, the Supreme Court can review the extent of laws made by legislature of states. Further, Article 246 (3) provided that the legislature of any state has exclusive power to make laws for any subject of the state legislative list. This means that if parliament ever makes a law on any such subject, except in time of emergency, it shall be void. This again could be decided by the Supreme Court alone.
A7rticle 251 laid down that if Parliament made any law on a subject of the state list Under Article 249 (in national interest) and under Article 250 (in times of emergency) and if it conflicted with any law of the state legislature on the same subject whether made before or after the law of Parliament, the law made by the state legislature shall be inoperative to the extent of repugnancy. Whether or not some provisions of the law of the state are repugnant to the provisions of a parliamentary law is decided by the Supreme Court. Under Art. 254 our Supreme Court can also decide inconsistency between laws made by Parliament and laws made by legislatures of states.
Similarly, Under Art, 258 our Supreme Court can also decide inconsistency between laws made by Parliament and laws made by legislature of states. Similarly, Under Art. 258 the Court can review the power of the Union (President) to confer powers etc. on states in certain cases either conditionally or unconditionally. The Supreme Court can also sit on judgement over the continuance in force of existing laws and their adaptations under Art. 372.
The power of Judicial Review of the Supreme Court was restricted by 42nd Amendment. But by 43rd Amendment the same position of the Supreme Court was restored which was before 42nd Amendment.
Extent of Legislation declared Unconstitutional. Since 1950, the Supreme Court decided hundreds of cases involving various laws passed by Parliament and state legislatures from time to time. It exercised its power of Judicial review in a number of cases. In Golak Nath’s case, the Supreme Court decided that the Parliament has no power to amend the provisions of the Fundamental Rights. On 10 February, 1970 Supreme Court declared the Banking Companies Act, 1969 invalid and unconstitutional. The Supreme Court held that the Act violated Article 14 relating to ‘equality before law’, Article 19 (1) concerning right to acquire, hold and dispose of property and Article 31 regarding compulsory acquisition of property.
In Purses and Privileges of Former Rulers case, “the Supreme Court struck down on 15 December 1970, the Presidential order of 16 September 1970 derecognizing the former rulers and held that the power of the President did not extend to the withdrawal of recognizance of all the rulers by a mid night order.” To neutralise the effects of the Supreme Court judgements, in 1971, 24th and 25th Amendment Acts were passed and these Amendment Acts restored to Parliament powers to amend fundamental rights.
The 24th, 25th and 29th Constitution Amendment Acts were challenged in the Supreme Court by Swami Keshavananda Bharati, a Keral religious head, and others on a variety of grounds. The Supreme Court delivered the judgement on 24 April 1973. The Supreme
Court reversed the Golak Nath case ruling &nd upheld Parliament’s right to amend the Constitution including the Fundamental Rights but not ‘the basic structure of framework’ of the Constitution.
On May 9, 1980, the Supreme Court in Minerva Mills case struck down section 55 of the 42nd Amendment Act 1976 which gives unlimited powers to Parliament. The court held that Section 55 of the Act which inserted sub-section (4) and (5) in Article 368 was beyond the amending power of Parliament and was void since it removed all limitations on the power of Parliament to amend the Constitution and conferred power upon it to amend the Constitution in such a manner as to destroy its basic or essential features or its basic structure.
The court also struck down section 4 of the Constitution 42nd Amendment Act amending Article 31C giving primacy to directive principles of state policy over fundamental rights. The court held that whatever Parliament does, it cannot destroy the country’s basic structure. Consequently, any law that tended to radically alter the basic structure must be declared null and void.
By declaring certain sections of the 42nd Amendment as ultra vires of the Constitution the Court has made it plain that the Supreme Court is the final arbiter aiid interpreter of the Constitution.
Short Answer Type Questions
Question 1.
Describe the composition of the Supreme Court.
Answer:
At the time of the commencement of the constitution, the Supreme Court consisted of eight judges including the Chief Justice. In 1956, the maximum number of judges was raised to eleven, including the Chief justice. This number was again raised in 1960 to fourteen including the Chief Justice. In July 2019 the number of Judges was increased from 30 to 33. Thus at present Supreme Court consists of Chief Justice and 33 other judges. Article 127 (I) makes provision for the appointment of adhoc judges also.
Question 2.
How are the Judges of Supreme Court appointed?
Answer:
The Chief Justice of India is appointed by the President in consultation with such judges of the Supreme Court and High Courts as he may deem fit. In the appointment of other judges of the Supreme Court the Chief Justice of India must be consulted by the President. In a landmark order on October 28, 1998 the Supreme Court observed that recommendation made by the- Chief Justice of India should have the sole power to recommend appointments through consensus.
Widening the scope of the consultation process, the Supreme Court said with regard to appointment of judges to the Supreme Court, the Chief Justice of India should consult a collegium of four senior most Judges of the Supreme Court and made it clear that even if two Judges give an adverse opinion, the Chief Justice should hot send the recommendations.
Question 3.
Write down qualifications essential for becoming a Judge of the Supreme Court in India.
Answer:
A candidate for appointment as a Judge of the Supreme Court must fulfil the following qualifications:
- He should be a citizen of India.
- He must have been a Judge of one or more High Courts for five successive years or must have been an advocate of one or more High Courts for ten successive years.
- He should be distinguished jurist, in the opinion of the President.
Question 4.
Explain the salaries and allowances of the Judges of the Supreme Court.
Answer:
The Chief Justice gets a salary of Rs. 2,80,000 per month and the other Judges Rs. 2,50,000 per month. Every Judge of the Supreme Court is entitled without payment of rent to the use of an official residence. The Judges are also allowed travelling allowances when they undertake journey for the performance of their official duties.
The salaries and allowances of the Judges are charged on the Consolidated Fund of India and accordingly, are not subject to the vote of Parliament. Neither the privileges nor the allowances of a Judge nor his rights in respect of leave or absence or pension shall be varied tohis disadvantage after his appointment. The salaries and allowances of the Judges can be reduced by the President during continuance of a Proclamation of Financial Emergency. The Constitution, thus, guarantees to the Judges both security of service and emoluments.
Question 5.
By which process can the judge of the Supreme Court be removed?
Answer:
The judge can be removed from office by the President after an address by each House of Parliament, supported by a majority of the total membership of that House and by a majority of not less than two third of the members of that house present and voting, has been presented to the President, in the same session for such removal on the ground of proved misbehaviour or incapacity.
Question 6.
What are the three types of jurisdiction of the Supreme Court? Explain its original jurisdiction.
Answer:
The main three types of jurisdiction of the Supreme Court are as follow:
- Original jurisdiction
- Appellate jurisdiction
- Advisory jurisdiction.
Original Jurisdiction:
Cases relating to the following matters are brought directly to the Supreme Court:
- Disputes between the Union and one or more States regarding the division of powers or any constitutional dispute.
- Disputes between States.
- Cases relating to the Fundamental Rights.
- Cases involving a point of law, i.e. where interpretation of the constitution is involved.
Question 7.
Discuss about the appeal in Constitutional Cases.
Answer:
Article 132(1) provides that an appeal shall lie to the Supreme Court from any judgement, decree or final order of a High Court in India whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. Even if the High Court refuses to give such a certificate, the Supreme Court can grant special leave to appeal if the Court is satisfied, that the case involves a substantive question of law as to the interpretation of the Constitution.
Question 8.
Define the appeal of which criminal cases can be taken to Supreme Court.
Answer:
As regards criminal cases Article 134 provides that an appeal shall lie to the Supreme Court from any judgement, final order or sentence in a criminal proceeding of a High Court if:
- the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
- has withdrawn for trial before itself any case from any Court subordinante to its authority and has in such trial convicted the accused person and sentenced him to death; or
- certifies that the case is fit for appeal of the Supreme Court. Under the Constitution, Parliament may be law widen still further the criminal jurisdiction of the Supreme Court.
Question 9.
Describe the Advisory Jurisdiction of Supreme Court.
Answer:
Under Article 143 of the Constitution, the Supreme Court exercises advisory or consultative functions also. Art, 143 provides that 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 public importance, he may refer the question to the Supreme Court for consideration and opinion. Such a question is heard by a Bench consisting of at least five judges and the Court follows the procedure of an ordinary trial. The majority opinion is sent to the President. The judges can hold dissenting opinion as well. The opinion of the Supreme Court is not binding on the President as it is not of the nature of a judicial pronouncement. Nor is it obligatory for the Supreme Court to give its opinion. It may or may not.
Question 10.
Mention the jurisdiction of the Supreme Court.
Answer:
The main three types of jurisdiction are as follows-
- Original Jurisdiction: Original jurisdiction means cases which start in the Supreme Court and regarding which the Supreme Court has exclusive jurisdiction.
- Appellate Jurisdiction: The appellate jurisdiction of the Supreme Court can be divided into three main part—-Constitutional, Civil and Criminal.
- Advisory Jurisdiction: The Supreme Court has the power to advice the President on legal matters but advice of the Supreme Court is not binding on the President.
Question 11.
Describe the composition of the High Court.
Answer:
There is a Chief Justice and some other judges in a high court. Their number is not fixed. The President decides the number from time to time. The Chief Justice and other judges of the High Court are appointed by the President. But in doing so, he consults the Governor of the State and Chief Justice of the Supreme Court. If the High Court has surplus work or its work has been increased temporarily, the President can appoint additional judges on adhoc basis for a period of two years. If a judge abstains for a long time or is incapable of his work, the President can appoint an acting judge in his place.
Question 12.
Describe the qualifications to become a Judge of High Court.
Answer:
No one can be appointed a Judge of the High Court, unless:
- he is a citizen of India ;
- he has held a judicial office in the territory of India for at least ten years; or
- he has been an advocate of one or more High Courts for at least ten years.
Question 13.
How are the Judges of High Court appointed?
Answer:
All the Judges of the High Court, including the Chief Justice are appointed by the President of India. While appointing the Chief Justice and other judges of a High Court, the President is required to consult the Chief Justice of India and the Governor of the state. The Chief justice of India is required to consult only two senior most Judges of the Supreme Court.
Question 14.
Describe the salary and allowances of the Judges of High Court.
Answer:
The Chief Justice of a High Court gets salary of Rs. 2,50,000 per month. Each other Judge of a High Court gets Rs. 2,25,000 per month. In addition to their salaries, they are also entitled to certain allowances. The Judges get pension after retirement. Their salaries and allowances cannot be varied to their disadvantage after their retirement. The salaries and allowances of the Judges are charged on the Consolidated Fund of the State, but their pensions are charged on the Consolidated Fund of India and are not subject to the vote of Parliament. The President is empowered to reduce the salaries of the Judges during the operation of the Proclamation of Financial Emergency.
Question 15.
How the Judges of High court can be removed?
Answer:
Judges of the High Court retire at the age of 62. Prior to the Fifteenth Amendment act, they used to retire at the age of sixty. Judges can resign office earlier by writing to that effect to the President of India. The President can remove the Judge from office on the ground of proved misbehaviour or incapacity. The Procedure of removal is similar to the one used in the removal of a Supreme Court Judge. In other words, Judges of High Courts can be removed by the President on an address of Parliament adopted separately by each House by a majority of its total membership as well as by a two-thirds majority of those present and voting.
Question 16.
Write down the original Jurisdiction of High Court.
Answer:
- Cases regarding fundamental rights.
- Cases relating to the subjects like will, contempt of court, divorce, etc.
- Cases regarding the interpretation of the constitution.
Question 17.
Describe the appellate Jurisdiction of the High Court.
Answer:
The appellate jurisdiction of the High Court extends to both civil and criminal cases.
- The High Court can hear appeals in criminal cases in which the accused has been sentenced to four years’ imprisonment by the Sessions Judge.
- The Sessions Judge of a District can award death sentence in criminal cases. But such a sentence is subject to the approval of the High Court.
- The High Court can hear appeals against the decisions of the lower Courts in most of the revenue cases also.
- Any case involving the interpretation of the Constitution or law is brought to the High Court in appeal.
- Appeal in cases of income tax, sales tax, etc. can be heard by the High Court.
Question 18.
What do you understand by the term Judicial Review?
Answer:
The essence of Judicial Review is the competence of a Court of law to declare the Constitutionality or otherwise of a legislative enactment. Judicial review means the power of the Courts to review the acts and’ orders of the legislative and executive wings of government and to declare them, when challenged by the affected person, null and void if they are against the provision of the Constitution. According to Dimock, “Judicial review is the examination by the Courts in case actually before them, of legislative status and executives or administrative acts to determine whether or not they are prohibited by a written Constitution or are excess of power granted by it.”
Question 19.
Write a short note on Supreme Court’s power of Judicial Review.
Answer:
Supreme Court is the guardian and final interpreter of the Constitution. The Supreme Court is vested with the power of Judicial review. It is the power of the Supreme Court to declare any law null and void if that law violates the Constitution. It is the Supreme Court which by its judicial review will decide whether a law in connection with the Fundamental Right is void or not. The Court has the power of judicial review where a citizen moves for the enforcement of the fundamental rights.
Under Article 32 (2) of the constitution, when the Court is so moved, it will have to decide whether legislation or executive action of the Union or of a state, violates a fundamental right, and if so it will ‘issue directions or orders or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.”
Very Short Answer Questions
Question 1.
Describe the composition of the Supreme Court.
Answer:
In July 2019, the number of Judges was increased from 30 to 33. Thus at present Supreme Court consists of Chief Justice and 33 other judges. Article 127 (I) makes provision for the appointment of adhoc judges also.
Question 2.
How are the Judges of Supreme Court appointed?
Answer:
The Chief Justice of India is appointed by the President in consultation with such judges of the Supreme Court and High Courts as he may deem fit. In a landmark order on October 28, 1998 the. Supreme Court observed that recommendation made by the Chief Justice of India should have the sole power to recommend appointments through consensus.
Question 3.
Write down any two qualifications essential for becoming a Judge of the Supreme Court in India.
Answer:
A candidate for appointment as a Judge of the Supreme Court must fulfil the following qualifications:
- He should be a citizen of India.
- He must have been a Judge of one or more High Courts for five successive years or must have been an advocate of one or more High Courts for ten successive years.
Question 4.
Discuss salaries and allowances of the Judges of the Supreme Court.
Answer:
The Chief Justice gets a salary of Rs. 2,80,000 per month and the other Judges Rs. 2,50,000 per month. Every Judge of the Supreme Court is entitled without payment of rent to the use of an official residence. The Judges are also allowed travelling allowances when they undertake journey for the performance of their official duties.
Question 5.
What are the three types of jurisdiction of the Supreme Court?
Answer:
The main three types of jurisdiction of the Supreme Court are as follow:
- Original jurisdiction.
- Appellate jurisdiction; and
- Advisory jurisdiction.
Question 6.
Explain Appelate Jurisdiction of the Supreme Court.
Answer:
Appeals against the decisions of the lower courts can be filed in supreme court. These appeals can be divided into three parts-constitutional, civil, criminal and special leave to appeal.
Question 7.
Discuss the jurisdiction of the Supreme Court.
Answer:
- Original Jurisdiction.
- Appellate Jurisdiction.
- Advisory Jurisdiction.
Question 8.
Supreme Court is a court of Record Discuss.
Answer:
The Supreme Court is the Court of Record. Hie significance of a court of record is two-fold: First, the records of the Supreme Court are admitted to be of evidentiary value and are not questioned when they are produced before any Court. Secondly, it has the power to fine and imprison for contempt of its authority.
Question 9.
Describe the composition of the High Court.
Answer:
There is a Chief Justice and some other judges in a high court. Their number is not fixed. The President decides the number from time to time. The Chief Justice and other judges of the High Court are appointed by the President. But in doing so, he consults the Governor of the State and Chief Justice of the Supreme Court.
Question 10.
Describe the qualifications to become a Judge of High Court.
Answer:
No one can be appointed a Judge of the High Court, unless:
- he is a citizen of India.
- he has held a judicial office in the territory of India for at least ten years.
Question 11.
Describe the salary and allowances of the’Judges of High Court.
Answer:
The Chief Justice of a High Court gets salary of Rs. 2,50,000 per month. Each other Judge of a High Court gets Rs. 2,25,000 per month. In addition to their salaries, they are also entitled to certain allowances. The Judges get pension after retirement. Their salaries and allowances cannot be varied to their disadvantage after their retirement.
Question 12.
Write down the original Jurisdiction of High Court.
Answer:
- Cases regarding fundamental rights.
- Cases relating to the subjects like will, contempt of court, divorce, etc.
- Cases regarding the interpretation of the constitution.
Question 13.
What do you understand by the term Judicial Review?
Answer:
Judicial review means the power of the Courts to review the acts and orders of the legislative and executive wings of government and to declare them, when challenged by the affected person, null and void if they are against the provision of the Constitution.
One Word to One Sentence Answer Type Questions
Question 1.
Which is the apex Court in India?
Answer:
The Supreme Court.
Question 2.
Where the Supreme Court is situated?
Answer:
The Supreme Court is situated at New Delhi.
Question 3.
Who appoints the Chief Justice of Supreme Court?
Answer:
President appoints the Chief Justice of Supreme Court.
Question 4.
How the Judges of Supreme Court can be removed?
Answer:
The Judges of the Supreme Court can be removed by impeachment only.
Question 5.
What is the tenure of the Judges of Supreme Court?
Answer:
Judges of the Supreme Court hold office till they complete the age of 65 years.
Fill in The Blanks
1. Supreme Court consist of one chief justice and ……………. other Judges.
Answer:
33
2. The Judge of the ……………. of India retire at the age of 65.
Answer:
Supreme Court
3. Number of Judges of the Supreme Court is fixed by ……………. .
Answer:
Parliament
4. Punjab and Haryana High Court sits at ……………. .
Answer:
Chandigarh.
True or False statement
1. The Judges of the Supreme Court are appointed by the President.
Answer:
True
2. The Chief Justice of India gets a salary of Rs. 20000 per month.
Answer:
False.
3. Judges of the High Court are appointed by the Governor.
Answer:
False.
Choose The Correct Answer
Question 1.
The President can seek advice from the Supreme Court on:
(A) Questions of law only
(B) Questions of fact only
(C) Questions of law and fact both
(D) None of these.
Answer:
(C) Questions of law and fact both
Question 2.
Which one of the following is incorrect:
(A) The Supreme Court is the guardian of the Constitution
(B) The Supreme Court is the guardian of the liberty of the people
(C) The Supreme Court is the guardian of the states in the federation
(D) Supreme Court is the guardian of the President.
Answer:
(D) Supreme Court is the guardian of the President.
Question 3.
The Supreme Court of India acts as Federal Court when it deals with:
(A) Fundamental Duties
(B) Inter-State dispute
(C) Directive Principles
(D) Election disputes of the President.
Answer:
(B) Inter-State dispute
Question 4.
Judges of the High Court retire at the age of:
(A) 58 years
(B) 65 years
(C) 60 years
(D) 62 years.
Answer:
(D) 62 years.
Question 5.
Judges of the High Court can be transferred by the:
(A) Parliament
(B) President
(C) Cabinet
(D) Prime Minister.
Answer:
(B) President
Question 6.
The Judges of the Supreme Court are appointed by the:
(A) President
(B) Prime Minister
(C) Chief Justice of India
(D) Parliament.
Answer:
(A) President