Supreme Court of India


India has one of the oldest legal systems in the world. Its law and jurisprudence stretches back into the centuries, forming a living tradition which has grown and evolved with the lives of its diverse people. India’s commitment to law is created in the Constitution which constituted India into a Sovereign Democratic Republic, containing a federal system with Parliamentary form of Government in the Union and the States, an independent judiciary, guaranteed Fundamental Rights and Directive Principles of State Policy containing objectives which though not enforceable in law are fundamental to the governance of the nation.

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The fountain source of law in India is the Constitution which, in turn, gives due recognition to statutes, case law and customary law consistent with its dispensations. Statutes are enacted by Parliament, State Legislatures and Union Territory Legislatures. There is also a vast body of laws known as subordinate legislation in the form of rules, regulations as well as by-laws made by Central and State Governments and local authorities like Municipal Corporations, Municipalities, Gram Panchayats and other local bodies. This subordinate legislation is made under the authority conferred or delegated either by Parliament or State or Union Territory Legislature concerned. The decisions of the Supreme Court are binding on all Courts within the territory of India. As India is a land of diversities, local customs and conventions which are not against statute, morality, etc. are to a limited extent also recognised and taken into account by Courts while administering justice in certain spheres.

Constitutional Validation

Article 124 of the Indian Constitution deals with the establishment and constitution of Supreme Court

(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:

Provided further that—

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office in the manner provided in clause (4).

1[(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.]

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and—

(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist.

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).

(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.

Jurisdiction (Articles 141, 137)

Articles 137 to 141 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Article-141, states that Law declared by Supreme Court is binding on all the courts in India and Article-137 empowers SC to review its own judgment. The Jurisdiction of the Supreme Court of India can broadly be categorised into three parts:

Original Jurisdiction(Article 131)

This jurisdiction extends to cases originating in SC only and states that Indian SC has original and exclusive jurisdiction in cases between:

  • Government on one hand and one or more states on the other
  • Government and one or more states on one side and other states on the other
  • Two or more states

Appellate Jurisdiction- (Article 132,133,134)

Appeal lies with SC against high court in following 4 categories

1. Constitutional matters-if high court certifies that the case involves substantial question of law that needs interpretation of constitution.

2. Civil matters- if case involves substantial question of law of general importance

3. Criminal matters-if high court has on appeal reversed the order of acquittal of an accused and sentenced him to death or has withdrawn for trial before itself any case from subordinate court

4. Special leave to appeal is granted by SC if it is satisfied that the case does not involve any question of law. However it cannot be passed in case of judgment passed by a court or tribunal of armed forces.

However, under this jurisdiction SC can transfer to itself cases from one or more high courts if it involves question of law in the interest of justice.

Advisory Jurisdiction (Article 143)

The Article 143 authorises the President to seek advisory opinion from the Supreme Court in the two categories of matters-(a) matters of public importance (b) of any question arising out of pre-constitution, treaty, agreement, engagement, sanad or other similar instruments. Also Article-144 states that all authorities civil and judicial in the territory of India shall act in aid of the Supreme Court.

Functions of the Supreme Court

  • Power to punish for contempt (civil or criminal) of court with simple imprisonment for 6 months or fine up to 2000. Civil contempt means wilful disobedience to any judgment. Criminal contempt means doing any act which lowers the authority of court or causing interference in judicial proceedings
  • Judicial review(Article 137)- to examine constitutionality of legislative enactments and executive orders. The grounds of review is limited by- Parliamentary legislation or rules made by Supreme Court.
  • Deciding authority regarding election of President Vice President
  • Enquiring authority in conduct and behaviour of UPSC members
  • Withdraw cases pending before high courts and dispose them itself
  • Appointment of ad hoc judges (Article 127) states that if at any time there is lack of quorum of Judges of Supreme Court, the CJI may with previous consent of the President and Chief Justice of High Court concerned request in writing the attendance of Judge of High Court duly qualified to be appointed as Judge of SC.
  • Appointment of retired judges of supreme court or high court (Article 128)- The CJI at any time with the previous consent of the President and the person to be so appointed can appoint any person who had previously held office of a Judge of SC.
  • Appointment of acting Chief Justice(Article 126)- when the office of CJI is vacant or when the Chief Justice is by reason of absence or otherwise unable to perform duties of office, the President in such case can appoint Judge of the court to discharge the duties of office.
  • Revisory Jurisdiction: The Supreme Court under Article 137 is empowered to review any judgement or order made by it with a view to removing any mistake or error that might have crept in the judgement or order.
  • Supreme Court as a Court of Record

The Supreme Court is a court of record as its decisions are of evidentiary value and cannot be questioned in any court.

Removal of Judges of Supreme Court

A judge of Supreme Court can be removed only from the office by the President on the basis of a resolution passed by both the Houses of parliament with a majority of the total membership and a majority of not less than two-thirds of the members present and voting in each house, on the grounds of proved misbehaviour or incapacity of the judge in question.

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