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Constitution of India- Supreme Court And High Court

Constitution of India Supreme court High court

Indian Judiciary System

Constitution of India

 

Indian Judiciary is single, integrated, independent, impartial and supreme.

Single, which means only one set of court for central and state government. i e., No division of judiciary

Integrated, which means all courts in the India have to work under the hierarchy of Supreme court

Note: The Highest court in India is Supreme court. It is also known as Federal court

Supreme court was established as Federal court in 1935. Supreme court of India came into force on 28th January 1950. i e.,  Federal Court changed to Supreme court on 26th Jan 1950

 

Supreme court of India

Part V of constitution of India chapter IV, Article 124 to 147 deals with all aspects of Supreme court

Article 124 of Indian Constitution: Establishment and constitution of supreme court

This article says about composition and as well as established of Supreme court of India

Supreme court shall consists of one Chief Justice and number of other judges will be determined by the parliament time to time

Initially in 1950, Supreme court had one Chief Justice and seven judges(1+7)

At Present, one Chief Justice and thirty judges(1+30), which was fixed at 2009

Note: Apart from regular judges certain Adhoc judges may be appointed

Chief Justice of Supreme court with prior permission of President of India may ask any retired Judge of Supreme court or any Judge of High court who is possessing all the qualification to be appointed as Judge of Supreme court

Adhoc Judges don’t have particular tenure, salary. Pensions of Adhoc Judges were decided by President of India.

President of India while appointing other judges consults Chief justice of Supreme court and Collegium, consisting of 4 senior Judges of Supreme court

 i e., Collegium = One Chief Justice and 4 Senior Judges (1+ 4 Judges)

The Collegium concept was invented by Supreme court in “Supreme court advocates association case”. Generally known as First Second and Third Judge case

Note: While appointing Chief Justice, President of India may or may not consult any Judges

 

Qualification of Supreme court Judges

a) He must be citizen of India and should not completed 65 yrs

b) He should be Judge of High court not less than 5 yrs or he must be practicing advocate of High court not less than 10 yrs

If Judge – 5 yrs experience 

if Advocate- 10 yrs experience 

c) He must be famous Jurist

Usually senior Judge of Supreme court is appointed as Chief Justice. But it is not compulsory to appoint senior Judge as Chief Justice of Supreme court, this view was held in Third Judge case. In Appointment, merit is also taken into consideration

Note: Two times seniority is not followed while appointing Chief Justice of Supreme court ie., seniority is violated.

In 1973- A.N.Roy  

In 1977- M.H. Beg  

 

Salary and allowance of Judges

Salary of Judges is fixed by parliament and charged on consolidated fund of India. It cannot be reduced expect in the course of financial emergency

Chief Justice of Supreme court is eligible for pension after retirements and all other facilities. 

 

Impeachment of Judges

Removal process of Judges is known as Censure or Impeachment

Article 124(4) of Indian Constitution: 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.

This article deals with removal of Judges of supreme court

Judges of Supreme court removed on two grounds

a) Incapacity

b) Misbehavior

Procedure and other rules are decided by Parliament. In 1968, Parliament made a law on removal procedures and regulating the behavior of Judges of Supreme and High court

The motion relating to the removal of Judges of Supreme court or High court may be introduce on either houses of Parliament

If removal process initiated in Loksabha then the notice must signed by 100 members

If removal process initiated in Rajya sabha then the notice must signed by 50 members, shall be presented to the houses

Lok Sabha = 100 members

Rajya Sabha = 50 members

Initiating house inquires against the allegation of a Judge by appointing a committee consisting of Judge of Supreme court, Chief Justice of High court and senior advocate in Supreme court

a) Judge of Supreme court

b) Chief Justice of India

c) A senior Advocate in Supreme court

If the allegations are proved in committee then the initiating houses approves the motion with a majority of total members of the houses, majority not less than 2/3rd members of present and voting

After this, the motion is transmitted to other house. If other house also approves the motion with same majority then the President of India issues order for removing the Judge

Note: In case of conflict between two houses regarding removal, motion gets defected. No joint session

 

The Same procedures and grounds are applicable to High Court Judges, Comptroller and Auditor General of India (CAG), Chief Election Commissioner of India and State Chief Election Commissioner

Judges are accountability to Parliament. some of the cases of impeachment process 

a) In 1991-93, Impeachment motion was introduced in Lok sabha against the then judge of Supreme court of India,V. Ramaswami.  The motion was defeated in the initially house itself

b) In 2012, Impeachment motion was introduced in  Rajya sabha against Kolkata Judge Soumitra Seth but he resigned mean while

c) P.D Dinakaran, Karnataka Chief Justice of High court resigned before the motion was initiated

 

Power and Function of Judges

Power and functions given as

a) Original Jurisdiction

b) Appellate Jurisdiction

c) Advisory jurisdiction

d) Court of record

e) Writ jurisdiction

f) Custodian of the constitution

 

Original jurisdiction: Under Article 131

Article 131 of Indian Constitution: Original jurisdiction of the supreme court 

Original which means exclusive, Special which are not enjoyed by other courts i e., Certain cases are directly taken to supreme court whose judgement is final. These type of cases is known as original jurisdiction

Some of Cases like

a) All Federal disputes i e., Center and State, Inter state disputes

b) Protection of Fundamental rights under Article 32

c) Any elections disputes relating to President of India and Vice President of India

 

Some disputes though there are Federal in nature but there not taken to Supreme court under original jurisdiction which are given as follows

a) Recommendation of Financial commission

b) Disputes between or among states regarding sharing river water. For Water sharing disputes Parliament had established an Inter state river water disputes tribunal under Article 262

Article 262 of Indian Constitution: Adjudication of disputes relating to water of inter-state rivers or river valleys

c) All disputes relating to the agreements entered by the states before commencement of Supreme court

 

Appellate Jurisdiction: Under Article 132

Article 132 of Indian Constitution: Appellate jurisdiction of Supreme court in appeals from high courts in regard to civil matters

The following are conditions to appeal a case from High court to Supreme court

a) High court has to certify that, that case involves substantial question of law

b) If High court certify that, the case further interpretation of the constitution

Note: Ultimate interpretation of constitution is Supreme court

c) In criminal cases, if High court completely reversed the judgement of lower court where by the accused as been sentence to death or he as been acquitted

d) Cases can also be appealed to supreme court under Article 136, Special leave petition i.e., with the special permission of supreme court, cases can be appealed to supreme court in rare cases

Article 136 of Indian Constitution: Special leave to appeal by the Supreme court

 

Advisory Jurisdiction: under Article 143

Article 143 of Indian constitution: Power of President to consult Supreme court 

President of India under Article 143 can seek or ask the advice of Supreme court on two matters

a) On any question of law

b) On any question of fact

Supreme court may or may not give an advise to President and President may or may not follow such advises. So it is not mutually binding

Some of incidents where President as been referred to Supreme court for advice

a) 2G Spectrum case

b) Office of profit

Note:
a) The advice given by the supreme court of India is binding on lower courts

b) High court doesn’t have advisory jurisdiction

 

Court of Record: under Article 129

Article 129 of Indian Constitution: Supreme court to be a court of record

Court of record which means the judgement of supreme court have evidential value or they can be taken as witness or precedent and case laws in the lower courts

All person, All instruction in India have to honor, respect the judgement of Supreme court. If any person willfully dishonors the judgement of supreme court, it amount to contempt of court under article 129 which is punishable

However Supreme court may or may not follow its own judgement in subsequent cases which is known as Doctrine of Prospective overruling. This doctrine has been applied in Kesavananda Bharati case for 1st time

 

Writ Jurisdiction: 

Complete writ jurisdiction concept is explained in Fundamental rights, 

LinkWrit Jurisdiction of Supreme court

 

Custodian/Protector of constitution:

Supreme court of India protect the constitution from the encroachments of central and state government by the power of Judicial review

The power of Judicial review is mentioned in Article 13, Article 32, Article 226(In case of High court), Article 131 and Article 246

Article 13 of Indian constitution: Laws inconsistent with or in derogation of fundamental rights 

Article 32 of Indian constitution: Remedies for enforcement of fundamental rights including writs 

Article 226 of Indian constitution: Power of high courts to issues certain writs 

Article 131 of Indian constitution: Original jurisdiction of the supreme court

Article 246 of Indian constitution: Subject matter of laws made by Parliament and the legislature of states

 

Some of the important related articles

Article 137 of Indian constitution: Review of judgments or orders by the supreme court

This article says that Supreme court of India can give order for enforcement of its own judgement

Article 138 of Indian constitution: Enlargement of the jurisdiction of the supreme court

 

High Courts

High court is highest court in every state under Article 214

Article 214 of Indian constitution: High courts for states

1st High court was established in 1862 in Kolkata, Subsequently Madras, Mumbai, Allahabad under Council Act 1861

Common High courts can be established for two or more than 2 states. Some of common High court for states

a) Maharashtra and Goa- Common High Court in Bombay

b) Haryana and Punjab – Common High court in Chandigarh

c) All North East states expect Sikkim – Common High court in Guwahati

Only one Union territory of India having its own High court ie., NCT Delhi. The remaining Union territories come under the nearest State High court jurisdiction like

a) Lakshadweep – comes under Kerala High court 

b) Andaman and Nicobar -comes under Kolkata High Court

c) Pondicherry – comes under Madras High Court

In 2013- Meghalaya, Manipur and Tripura were also given their own High court . With establishment of High courts in 3 states in 2013 makes total of 24 High courts in India 

 

Composition of High Court

A High Court shall consist of one Chief Justice and such number of other Judges as decided by President from time to time

Note: In case of Supreme court – Parliament decides number of Judges

Apart from the regular Judges, President of India also appoints certain additional Judges for the term of 2 yrs

Note: In case of Adhoc Judges of Supreme court, No fixed tenure but for High Court Adhoc Judges, 2 yrs tenure

 

Appointment of Judges of High courts

President of India makes all appointments in High court including Chief Justice under article 217 after consultation with Chief Justice of India and Governor of state while appointing other Judges 

Article 217 of Indian constitution: Appointment and condition of the office of a Judge of a High court 

 

Qualification for Judges of High courts

a) They should not completed the age of 62 yrs

Note: Original the retirement age was 60 yrs but increased to 62 yrs in 1963 by 14th Amendment. Again the retirement age of High court further increased for 65 yrs by 114th Amendment

Now Supreme court and High Court retirement Judge age is same i e., 65 yrs

b) He must be practicing advocate not less than 10 yrs in High court or he must be judicial officer for 10 yrs experience in center state Judicial service

 

Salary for Judges of High courts

Salary of High court Judges were determine by Parliament and charged on consolidated fund of state. The Pensions were charged on consolidation fund of India because Judges are transferred to one state to another state

President of India transfers the Judges of High court including the Chief justice after consulting the Chief justice of India.

 

Removal of Judges of High courts

Judges of High Court is removed same as Supreme court Judges procedure i e., impeachment under Article 217(1b)

Article 217(1b) of Indian constitution: Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court

Note: High court Judges addresses the resignation to President of India

 

Judges of High Courts are transferred under Article 222

Article 222 of Indian constitution: Transfer of a Judge from one High court to another

Note: The Judges of Supreme court of India including Chief Justice of India after their retirement they are not allowed to practice law before any court or any authority in India

However, Judges of High court can practice law in such High court they are not worked

 

Power and function of High court

a) Original Jurisdiction

Original Jurisdiction are observed in the following cases

i) All election disputes in Member of Legislative Assembly(MLA’s), Member of Legislative Council (MLC’s), Member of Parliament (MP’s)

ii) Protection of Fundamental under Article 226

Article 226 of Indian Constitution: Power of High courts to issue certain writs 

iii) Disputes relating to company Acts, Copy right (Patent right)

 

b) Appellate Jurisdiction

Any court lower to High court is called sub-ordinate court. Any case irrespective of its value can be appealed to High court

However, Any death penalty imposed by sessions court must be endorsed by High court

 

C) Advisory Jurisdiction

High court doesn’t have advisory Jurisdiction

 

d) Court of Record

The Judgement of high Court are binding on the lower court

If court or individual willingly dishonors High court judgement, it comes under the contempt of court and attract the punishment

 

e) Writ jurisdiction

High Writ on Fundamental under Article 226

Article 226 of Indian Constitution: Power of High courts to issue certain writs 

Complete writ jurisdiction concept is explained in Fundamental rights, 

LinkWrit Jurisdiction of High court

 

f) Administrative and Judicial control

High court enjoys certain administrative and judicial control over the lower courts

Administrative control, High court of state to be consulted by Governor while appointing, transferring, promoting and other disciplinary action against Judicial officers in state

Judicial control, Lower court as to follow such procedures, methods, rules which are determined by High court in dealing the cases of judgement

 

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