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INTRODUCTION
11 Aug 2020

THE SUPREME COURT OF INDIA AND THE HIGH COURTS

SUPREME COURT OF INDIA

HIGH COURTS

Composition

Composition


Appointments and Removal of the Judges

Appointment and Removal of the Judges.


Qualifications of the Judges

Qualifications of the Judges 

Powers and Functions of the Court:

  • Original Jurisdiction
  • Writ Jurisdiction
  • Appellate Jurisdiction
  • Constitutional Cases
  • Civil Cases
  • Criminal Cases
  • Revisory Jurisdiction
  • Advisory Jurisdiction
  • As a court of record

Powers and Functions of the Courts

  • Original Jurisdiction
  • Writ Jurisdiction
  • Appellate Jurisdiction
  • As a Court of Record

Appointment of the Judges

  1. The Judges of the Supreme Court are appointed by the President of India. In the appointment of the Chief Justice of the Supreme Court, the President may consult those judges of the Supreme Court and the High Courts, whom he thinks necessary for that purpose.
  2. In the appointment of the other judges of the Supreme Court, the President must consult the Chief Justice of the Supreme Court. He may also consult those judges of the Supreme Court and the High Courts, whom he thinks necessary.
  3. In 1993, in the case: Supreme Court Advocates on Record Association v/s the Union of India, the Supreme court held that the Chief Justice Of India’s opinion, in the appointment of the judges of the supreme court and the high courts, and in the transfer of the judges of the High Courts, shall enjoy primacy.
  4. This was the reversal of the Supreme Court’s earlier decision in S.P. Gupta v/s The President of India Case (1980), in which the Supreme Court held that the opinion of the Chief Justice of India is not binding upon the President.
  5. In 1998, in the Presidential Reference Case, when the President asked for clarifications regarding the role of the Chief Justice in the appointment of the judges, the Supreme Court gave certain guidelines:
    • The Chief Justice of India should consult four senior judges of the Supreme Court, regarding the appointment of new judges (Collegium).
    • The views expressed by these four judges should be conveyed in writing to the government.
    • If the government provides material evidence for non-appointment of a judge, recommended for appointment by the Chief Justice of India, then the Chief Justice of India should consult other judges.
    • If the recommendations of the Chief Justice of India are made without complying with the norms and requirements of the collegium system, then such recommendations are not binding upon the President.

Qualifications for the Judge of the Supreme Court

  1. He should be a citizen of India.
  2. He should have bee a judge of the High Court at two or more such High Courts in succession for at least 5 years or have been the advocate of a High Court for at least 10 years.
  3. He should be a distinguished jurist in the opinion of the President.

Tenure

  • The minimum age is not mentioned.
  • The maximum age is 65 years.
  • If he resigns, he should give his resignation to the president.
  • He can be removed by the President upon a resolution passed by both the Houses of the Parliament, separately, by a majority of not less than 2/3rd of the members present and voting, on the grounds of proved misbehavior or incapacity.

Impeachment of the Judge of the Supreme Court

The procedure for the removal of the Judge of the Supreme Court is given under Article 124 (4) and the Judges (Inquiry) Act, 1968.

  • According to the Article 124 (4):
    • The only grounds upon which the removal of the Judge of the Supreme Court may take place are:
      • Proved Misbehaviour
      • Incapacity
  • The word ‘misbehaviour’ means wrong conduct or improper conduct. Some examples: corruption, lack of integrity or any other offence involving moral turpitude.
  • The process of impeachment is same for the Judges of the Supreme Court and the High Courts.

The procedure for the impeachment is as follows:

  1. A motion addressed to the President signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha is delivered to the Speaker or the Chairman.
  2. The motion is to be investigated by a Committee of three (2 Judges of the Supreme Court and a distinguished jurist).
  3. If the Committee finds the Judge guilty of misbehaviour or that he suffers from incapacity the motion together with the report of the Committee is taken up for consideration in the House where the motion is pending.
  4. If the motion is passed in each House by majority of the total membership of that House and by a majority of not less than two-thirds of that House present and voting the address is presented to the President.
  5. The Judge will be removed after the President gives his order for removal on the said address.

Power and Functions of the Judge of the Supreme Court

The Supreme Court of India is the only interpreter of the Constitution of India. Whether a law made by the Parliament is within the boundaries or in affirmation with the Constitutional or not, this is decided by the Supreme of India.

Other functions of the Supreme Court include:

  • Original Jurisdiction
  • Writ Jurisdiction
  • Appellate Jurisdiction
  • Constitutional Cases
  • Revisory Jurisdiction
  • Advisory Jurisdiction
  • As a court of record

Original Jurisdiction

Under the original Jurisdiction, all the cases of federal nature i.e. any disputes between:

  • the Union and the State,
  • Union or one or more State on one side,
  • other states on the other side

They can be settled and entertained only in the Supreme Court. No other court is allowed to hear such cases.

Writ Jurisdiction

In order to enforce the Fundamental Rights, the Supreme Court has a power to issue writs, such as:

  1. Habeas Corpus
  2. Mandamus
  3. Prohibition
  4. Quo Warranto
  5. Certiorari
Click to Read more about writ juristiction | Right to Constitutional Remedies

Appellate Jurisdiction

A person can move the Supreme Court against the decision of the High Court.

There are three types of cases:

  1. Constitutional Cases: In a case where the interpretation of the constitution is required. If one feels that a case requires interpretation of the Constitution, he can, under appeal, move the Supreme Court.
  2. Civil Cases: One can appeal to the Supreme Court, only if a High Court certifies that the value of the subject matter of dispute involves substantial amount and the case is fit for appeal to the Supreme Court. Initially, it was Rs. 20,000, if in a case the amount involved is this much. The Parliament has the power to change this figure of Rs. 20,000.
  3. Criminal Cases: One can appeal to the Supreme Court, if
a)    The High Court has, on appeal, reversed the order of acquittal of an accused and sentenced him to death.
b)    The High Court prohibited the subordinate court to decide any case and sentenced the accused to death.
c)    The High Court certifies that the case is fit for appeal to the Supreme Court.
d)    SLP – Special Law Petition, to move to Supreme Court

Revisory Jurisdiction

The Supreme Court can revise its earlier decision. Only a Higher Bench can revise the decision of the Lower Bench.

Advisory Jurisdiction

This jurisdiction is associated with the advisory powers of the Supreme Court, to the President. The Supreme Court may or may not give advice to the President, but in cases it is bound to give advice. The Supreme Court is bound to give advice on the issue arising out of Pre-Constitutional treaties or agreements, for example- The Babri Masjid/ Ayodhya Issue (not advised by Supreme Court).

As a Court of Record

The Supreme Court is also called the Court of Record, because whatever decision it takes in cases, become record and can be cited in other similar cases.

Doctorine of Colourable Legislation

  • In a federal constitution, the transgression of its limits of power by a legislature may be either direct or indirect. If the transgression is indirect or covert, it is called as Colourable Legislation.
  • In this case, although the subject on which the legislature makes law falls within its competence in appearance, the real intention of the law is to transgress the power of other legislature covertly or indirectly.
  • Applying the Doctrine of Colourable Legislation, the court can invalidate the entire law.
  • The motive and spirit of the Doctrine is that what the legislature cannot do directly, it cannot do the same indirectly also.
  • This doctrine was upheld by Supreme Court in the case of Moopll Nair v/s State of Kerala.

Doctrine of Pith and Substance

  • With their respective spheres, the Union and State Legislature are made supreme and they should not encroach upon the sphere reserved for the others.
  • If a law passed by one encroaches upon the field assigned to the other, the court will apply the Doctrine of Pith and Substance.
  • If it is found that the law in substance is within the subjects assigned to the legislature and the intention of the law is genuine, the law shall be held valid in its entirety, even though there is some overlapping.
  • The Supreme Court propounded this doctrine in the case of State of Rajasthan v/s G. Chawla in 1959.
  • In the opinion of the court such encroachment is only incidental and hence extend of invasion is immaterial.