Judiciary- 1 Notes | EduRev

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Independence of Judges 

The independence of the Judges of Supreme Court is secured by the Constitution in following ways:

(i) Though the appointing author ity is the President, acting with the advice of his Council of Ministers, the appointment of a Supreme Court Judge has been lifted from the realm of pure politics by requiring the President to consult the Chief Justice of India in the matter.
(ii) A Judge of the Supreme Court shall not be removed by the President, except on a joint address by both Houses of parliament (supported by a majority of not less than two-thirds of the members present and voting in each House), on ground of proved misbehaviour or incapacity of the Judge in question (Art. 124(4)].
(iii) By fixing the salaries of the Judges by the Constitution and providing that these shall not be varied to the disadvantage of a Judge during his term of office Art. 125) except during a financial emergency (Art. 360).
(iv) The administrat ive expenses of the Supreme Court, the salaries and allowances, etc., of the Judges as well as of the staff of the Supreme Court shall be 'charged upon the Consolidated Fund of India' i.e. shall not be subject not be subject to vote in Parliament [Art. 146(3)].
(v) The discussion of the conduct of a Judge of the Supreme Court (or of a High Court) is forbidden in Parliament, except upon a motion for an address to the President for the removal of the Judge.
(vi) After retirement,  a Judge of the Supreme Court shall not plead or act in any Court or before any authority within the territory of India.

Original Jurisdiction

Original jurisdiction means the authority to hear and determine at the first instance, where in the par-ties involved are constituent units of the federal structure. The Supreme Court has this jurisdiction in disputes where in the parties are:

(i) The Government of India and one or more states;
(ii) The Government of India plus state vis-a-vis one or more states; and
(iii) Two or more states.
 Disputes involving a question of law or fact can only be covered under the original jurisdiction of the Court. The jurisdiction excludes a private individual vs the state, a dispute relating to interstate rivers, or disputes on matter referred to the Finance Commission. (These disputes may, however, be referred to the Supreme Court by the President for its advisory opinion).

Enforcement of fundamental rights : Confers original jurisdiction upon the Supreme Court to enforce fundamental rights. It is empowered to issue writ in cases of infringement of these rights. Thus the Supreme Court, under Art. 32, acts as a guardian and protector of fundamental rights.

Appellate Jurisdiction 

The Supreme Court is the final appellate tribunal of the land. Appellate jurisdiction may be on: (i) constitutional matters; (ii) civil matters; and (iii) criminal matters.

1. Appeal in constitutional matters : An appeal may be made against any judgement, decree or final order of a High Court whether in civil, criminal or other proceedings. But the High Court has to certify that the case involves a substantial question of law.

To avoid delay in making appeals, the High Court grants the certificate either on its own motion or on the oral application of the aggrieved party immediately after the judgement is passed.
 Under three conditions are necessary for grant of certificate by the High Court:

(i) The order appealed must be against the judge-ment;
(ii) The case must involve a question of law as to the interpretation of court; and
(iii) The question involved in such constitutional interpretation must be a question of law.

The 'substantial' aspect is to be decided by the Court. The Court does not certify a case where in an earlier judgement of the Supreme Court exists. The Supreme Court may refuse to hear the appeal if it is satisfied that the appeal is not competent; or it may resolve the controversial court.

In the appeal, the appellant cannot challenge any part of the case other than the aspects on which the High Court certificate is issued. But if the appeal is made under the jurisdictionary powers of the Supreme Court for appeal by special leave, where the High Court trial has resulted in miscarriage of justice, the appellant can raise other issues also.

2. Appeal in civil cases : Under the Supreme Court can hear appeal from any judgement, decree or final order in a civil proceeding of a High Court if the High Court is satisfied under. Two conditions are necessary:

(i) That the case involves a substantial question of public importance; and
(ii) That in the opinion of the High Court, the question needs to be decided by the Supreme Court.

An appeal under does not allow the raising of new grounds. Those grounds which were not raised before the lower courts will not be raised in the Supreme Court. Also, no appeal lies to the Supreme Court form the judgement, decree or final order of a single judge of a High Court.

3. Appeal in criminal cases : Says that an appeal would lie before the Supreme Court from a judgement, final order or sentence in a criminal proceeding of a High Court. This appeal may be made with or without the certificate of the High Court.

Without certification : An appeal lies in the Supreme Court under, if the High Court:

(i) Has on appeal, reversed the order of acquittal of an accused person and sentenced him to death; or
(ii) Has withdrawn itself from the trial in a case where in the subordinate court has convicted the accused and sentenced him to death.

The Supreme Court Criminal Appellate Jurisdiction Act, 1970, has made the Supreme Court's appellate jurisdiction in these cases also applicable to verdicts involving imprisonment for life or for not less than 10 years. (But if the High Court has reversed the order of conviction and has ordered the acquittal of an accused, no appeal would lie to the Supreme Court.

With Certification : An appeal lies in the Supreme court under. The power to grant certificate in a criminal case is a discretionary power of the High Court. But generally judicious sense prevails and the certificate is granted where an exceptional circumstance exists.

Appeal by Special Leave

Under the Supreme Court is empowered to grant, in its own discretion, special leave to appeal from any judgement, decree, determination, sentence or order; in any case or matter passed or made by a court or tribunal in the country. Any court or  tribunal constituted under law related to the armed forces is out of the purview of this article.

In an appeal under the Supreme Court does not allow the appellant to raise new plea for the first time. In criminal cases, the Supreme Court would not grant special leave to appeal unless it is shown that special and exceptional circumstances exist.

Advisory Jurisdiction 

Says that the Supreme Court can extend its advice to Government if asked for. The opinion is sought when it appears to the President that:

(i) A question of law or fact has arisen or is likely to arise; and
(ii) The question is of such public importance that it is expedient to obtain the opinion of the Supreme Court.

The reference made under would be opinion rather than judicial pronouncement. The President is not obliged to accept that. The Supreme Court, too, is not under obligation to give its opinion. Under 143(2), the President may refer to the Supreme Court matters which are excluded from its jurisdiction. The Court is bound to given its opinion there on.

In the Kerala Education Bill Case (1958), the Supreme Court laid down the following principles for advisory jurisdiction.

(i) The Supreme Court has, under, a discretion in the matter: for good reason, it can refuse to express its opinion on the question submitted to it.
(ii) It is for the President to decide what questions should be referred to the Court. If he does not entertain any serious doubt on the other provisions, it is not for any other party to raise objections.

In the Special Courts Bill case (1978), the Supreme Court held that the views expressed by it in exercise of its advisory jurisdiction are binding on all the courts in the territory of India. According to the judgement of the Supreme Court will be binding on all the courts of India. The Supreme Court is, however, not bound by its own decisions and may in a proper case reverse its previous decision.

Power of the Supreme Court

Among the powers of the Supreme Court, the following may be noted:

(i) Power to review its judgement;
(ii) Power of judicial review;
(iii) Ancillary power;
(iv) Power to withdraw and transfer cases; and
(v) Federal courts' jurisdiction.

Power to Review its Judgement : According to the Supreme Court has expressly been given power to review its judgement on;

(i) discovery of new important matters of evidence;
(ii) mistakes or error apparent on the face of law;
(iii) any other sufficient reason.

Power to Judicial Review : The Supreme Court is competent to declare the constitutionality of a legislative enactment. The power of the Court to declare legislative enactment. The power of the Court to declare legislative enactment invalid is expressly provided by the Constitution under which declares that every law inconsistent with fundamental rights would be declared as void. Further vest the Supreme Court with the power of reviewing legislative enactment of the Union and the states. In the Minerva Mills case, the Supreme Court itself declared judicial review as a 'basic feature' of the Constitution.

Ancillary Power : Under, Parliament may by law confer such supplementary power on the Supreme Court as may be necessary to enable it to perform effectively the function placed upon it. But such ancillary/supplementary powers would not be inconsistent with the provision of the Court.

Power to Withdraw and Transfer Cases: Provides that if on application made by the Attorney General of India, or by a party or on its own motion, the Supreme Court is satisfied that the cases involving the same or substantially the same questions of law are pending before one or more High Courts and that such substantial questions are of general importance, it may withdraw the cases and dispose them itself. Empowers the Supreme Court to transfer
 the case, appeals, or other proceedings from any High Court to another High Court if it thinks fit.

Union of India vs Shiromani Gurudwara Prabandhak Committee provided such an instance.
 The respondents had filed a petition for damage in Punjab against the Union of India for loss of gurudwara properties As a result leave to file the case in the Supreme Court was taken up on the ground that fair trial was not possible in Punjab in view of the extraordinary situation prevailing in the state. Since the circumstances justified transfer of the case, the Supreme Court allowed its transfer to the Delhi Court.

Federal Court's Jurisdiction : Under the Supreme Court also has the jurisdiction and power with respect to any matter to which the provisions of do not apply, if jurisdiction and power in relation to that matter wee exercisable by the federal court immediately before the commencement of this court. Two conditions are necessary for the Supreme Court to exercise this jurisdiction. These are:

(i) Art. 133 and 134 do not apply to the case; and
(ii) It is a case with regard to which the federal court had the jurisdiction to entertain appeal.

Jurisdiction of High Court 

No detailed classification of the jurisdiction of High Court was made in the Constitution. They were presumed to be working under the jurisdiction fixed at the time of independence. Thus except where Parliament establishes a Thus except where Parliament establishes a common High Court for two or more states or extends the jurisdiction of High Court to a Union territory, the jurisdiction of a High Court is coterminous with the territorial limits of the state. The Constitution has enlarged the jurisdiction of High Courts by virtue of articles 226 (power to issue certain writs) and 227 (power of superintendence over all courts). State Legislatures may pass a law affecting the jurisdiction of the High Courts, but such a Bill is required to be reserved for the consideration of the President. Parliament may pass laws affecting the jurisdiction of High Courts.

The Supreme Court has power to issue writs only for the enforcement of Fundamental Rights. The power of the High Courts, however, is wider as the High Courts can issue writs 'for any' other purpose' also. The words 'for any other purpose' refer to enforcement of a legal right or a legal duty. They do not mean that a High Court can issue writs for any purpose it pleases.

At present the High Court enjoys the following powers.

Original and Appellate Jurisdiction : High Courts are primarily courts of appeal. Only in matters of admiralty, probate, matrimonials, contempt of court, enforcement of fundamental rights and cases ordered to be transferred from a lower court involving the interpretation of the Constitution of their own file, they have original jurisdiction.

Power of Superintendence : The power of superintendence over all courts and tribunals excepting military tribunals is exclusive to the High Court. It includes a revisional jurisdiction to intervene in cases of gross injustice even though no appeal or revision against the order is made.

A Court of Record : Art. 215 declares that every High Court shall be a court of record and shall have all the powers of such a court, including the power to punish for contempt.

Power to Issue Writs : Every High Court has the power to issue to any person or authority order or writ (habeas corpus mandamus, prohibition, quo warranto, certiorari) or any of them for the enforcement of any right under or for 'any other purposes.'Any other purposes' clause was omitted by the 42nd amendment but restored by the 44th amendment.

While the Supreme Court issues writs only in cases of violation/infringement of fundamental rights, high courts can issue write both in cases of infringement of rights under Part II and for any other purposes. For the Supreme Court, the writ issuing power springs by the virtue of its being guarantor and protector of fundamental rights. This right is available to a high court under its general jurisdiction. In addition, the Supreme Court's jurisdiction. In addition, the Supreme Court's jurisdiction in write extends over the entire territory of India; that of the High Court is limited to its particular territorial jurisdiction,

Power to Transfer Cases : The Constitution denies to the subordinate courts the right to interpret the Constitution so that there may be the maximum possible uniformity as regards constitutional decisions. Art. 228 empowers the High Courts to withdraw a case from a subordinate court to it, it is satisfied that a case pending in a subordinate court involves a substantial question of law as to the interpretation of the Constitution. It may return the case after determining the question of law. The subordinate courts will, then, adjudicate according to the direction of the High Court.

Power of Appointment : According to Art. 229, the Chief Justice of the High Court has the power to appoint any member of the staff of High Court in consultation with the Public Service Commission of the state. He also has the power to regulate the conditions of service of the staff subject to any law made by the state legislature in this respect.

Parliament has passed the Administrative Tribunals Act, 1985, implementing Art. 323A, under which centre has set up Central Administrative Tribunals with respect to service under Union. Thus all Courts of law including the High Court have ceased to have any jurisdiction to entertain any litigations relating to the recruitment and other service matters relating to persons appointed to the public services of Union, whether in its original or appellate jurisdiction. The Supreme Court has, however, been spared its special leave jurisdiction of appeals from these Tribunals, under.

Control Over Subordinate Courts : The High Court has got an administrative control over the subordinate judiciary in the State in respect of certain matters, besides its appellate and supervisory jurisdiction over them. The subordinate Courts include District Judges, of the City Civil Courts, Metropolitan Magistrates and members of the judicial service of the state. The High Court controls the Judges of these subordinate Courts in following ways :

(i) The High Court is to be consulted by the Governor in appointing, posting and promoting district judges.
(ii) The High Court is consulted, along with the State Public Service Commission, by the Governor, in appointing persons (other than district judges) to the judicial service of the State.
(iii) The High Court has the control over district courts and courts subordinate there to, including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service and holding any post inferior to the post of a district judge.

Need of a Supreme Court

The essence of a federal Constitution is the division of governmental powers between a Central Government and State Governments. The division is expressed in written words.

Since the language is apt to be ambiguous, and its meaning may not be taken as the same by all at all times, it is certain that in any federation, there are bound to be disputes between the Centre and the units about the terms of the division of powers and the respective areas of their authority.

All such disputes are to be settled with reference to the Constitution, which is the supreme law, and which embodies the manner in which powers are divided between the Union and the units.

At the same time, fairplay and justice demand that such conflicts should be settled by an impartial and independent authority. A Supreme Court under a federal Constitution is one such, and is, therefore, an essential component of a federal system.

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