In a political system based on constitutional Government , the functions of rule making, rule enforcement and rule interpretation are separated into the three institutions of the legislature, the executive and the judiciary. A judiciary that is independent of and acting as a check on arbitrary exercise of legislative and executive power is an essential feature of a constitutional itself means. In a federal system, the judiciary also serves as a tribunal for the final determination of disputes between the union and its constituent units.
Given the tremendous importance of the role and functions of the Supreme Court & High Courts, various measures have been adopted to ensure the independence of the judiciary. The judiciary in India is paradoxical institution. On the one hand courts are extraordinarily powerful on the other, its working seems manipulated by the executive. Through a creative interpretation of the constitution, courts have not only exercised their power of judicial review but also have to managed to place the limits on the power of parliament to amend the constitution. There are 20 million case pending in Indian courts, of which 3.2 million are in the High Courts.
The entire judicature has been divided into three tiers. At the top there is a Supreme court (apex), below it is the High Court and the lowest rank is occupied by session’s court. The supreme Court is the highest court of law. The constitution says that the law declared by the supreme court shall be binding on all small courts within the territory of India(Art. 141). Below the Supreme Court, are the High Courts located in the states. Under each High Court there are District Sessions Courts. Subordinate Courts and Courts of Minor Jurisdiction called Small cause courts. Given the importance of the judiciary in a federal system resting on limited government , The Supreme Court was designed to make it the final authority in the interpretation of the constitution . While framing the judicial provisions, the constituent assembly gave a great deal of attention of the courts, the power of the supreme court and the issue of judicial review.
The Constitution makes sure that the Supreme Court is independent as much as possible.
Eligibility -The person must be a citizen of India -Judge of a High Court or of two or more such Courts in succession for at least five years, or -An Advocate of a High Court or of two or more such Courts in succession for at least ten years, or -The person must be, in the opinion of the President, a distinguished jurist. -A Judge of a High Court or retired Judge of the Supreme Court or High Courts may be appointed as an ad-hoc Judge of the Supreme Court.
Appointment: Though the President has the appointing authority with the advice of his Council of ministers the appointment of the 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.
Salary: The salary and allowances of a judge cannot be reduced after appointment.the salaraies of the judges are fixed by the constitution and providing that though the allowances,leave and pension may be determined by law made by the Parliament,these shall not be varied to the disadvantage of a judge during his term of office except may be during a ‘financial emergency’.the adminstrative expenses of the Supreme Court,the salaries and allowances of the Judges and staff of the Supreme Court shall not be subjected to vote in Parliament and would be charged on the ‘Consolidated Fund of India’.
Contempt of court: The Constituion allows the Supreme Court to punish anyone for contempt of any law court in India,under Articles 129 and 142. The Supreme Court perforemed an unprecedneted action when it directed a sitting minister of the state of Maharashtra,Swaroop singh Naik,to be jailed for one month incharge of contempt of court on 12 May 2006.This was the first time a serving minister was ever jailed.He was sentenced for allowing an illegal saw mill to run in a forest in Vidarbha near Tadoba santuary when he wa the Maharashtra forest minister.The court had directed in 1997 to the state ministers to not renew the licenses of sawmills in the forest areas.
Violation of Laws: The Supeme Court has the right to invalidate any law made by the Parliament if it violates the “Basic Stucture” of the constituion or if it violates any of the fundamental rights of the citizens. On 24th April,1973 the Supreme Court in the ‘Kesavananda Bharti v/s The state of Kerela’ case responded to the Parliament that although the amendments made were constituional the court still reserved for itself the discretion to reject any constituional amendments passed by Parliament declaring that the amendments cannot change the Basic Structure.
Removal: The judge cannot be removed from office before time except by an order of the president passed in the Lok Sabha and Rajya Sabha supported by a majority of the total membership of that house and by a majority of not less than two thirds oh the members present and voting,and presented to the president in the same session for such removal on the ground of proved misbehaviour or incapacity. There were two judges who were removed by this process the first was Justice V.Ramaswami:He was the Punjab and Haryana High Court chief justice of the year 1993 when he was impeached by the Lok Sabha by 196 votes because of his incapacity to do work.
The Supreme Court charged him for his failure to do complete justice. The second was that of Justcice Soumitra Sen.He was the Calcutta High Court chief justice,the justice of India K.G Balakrishnanhad recommended him for impeachement to the Parliament because he had misappropriating rs.22.83 lakh than on than on 2009 a three member committee was set up and investigation was staretd and he was found guilty and finally on 17th August 2011 he was impeached by Rajya Sabha.
The Supreme Court has original, appellate and advisory jurisdiction.
Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.
The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. The Supreme Court, if 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 questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court.
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies : (a) that the case involves a substantial question of law of general importance, and (b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court.
In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, 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 and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.
The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India.
The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution. The supreme court is vested with the power to render advisory opinions on any question of fact or law that may be referred to it by the president. The advisory role of the supreme court is different from orinary jurisdiction in three senses. ·There is no litigation between two parties
·The advisory opinion of the court is not binding on the govt. ·It is not executable as a judgement of the court. The practice of seeking advisory opinion of the supreme court helps the executive as a judgement of the court. It gives a soft opinion to the indian govt. on some politically difficult issues. As in case of Babri Masjid complex and Ayodhya. The govt. decided to refer aspects of the dispute to the supreme court for an opinion. Since there was no legal point at issue, the referral to the supreme court had the potential for politicizing the judiciary instead resolving.
Although the proceedings in the Supreme Court arise out of the judgments or orders made by the Subordinate Courts including the High Courts, but of late the Supreme Court has started entertaining matters in which interest of the public at large is involved and the Court can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or by addressing a letter to Hon’ble the Chief Justice of India highlighting the question of public importance for invoking this jurisdiction.
Such concept is popularly known as ‘Public Interest Litigation’ and several matters of public importance have become landmark cases. This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction. A Writ Petition filed at the Filing Counter is dealt with like any other Writ Petition and processed as such. In case of a letter addressed to Hon’ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose.
If a petition is received from the jail or in any other criminal matter if the accused is unrepresented then an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also the Court can appoint an Advocate as amicus curiae if it thinks it necessary in case of an unrepresented party; the Court can also appoint amicus curiae in any matter of general public importance or in which the interest of the public at large is involved.
As in case of Kasab, A bench of justices Aftab Alam and C K Prasad dismissed 25-year-old Kasab’s plea against his conviction and death sentence confirmed by the Bombay high court, saying he was given free[->0]and fair trial in the case. “Kasab’s confessional statement was very much voluntary except a very small portion,” the bench held.It also dismissed Kasab’s contention that the trial was not fair because the government did notprovide[->1] him advocate during the time when he was arrested and put on trial.
The apex court said the trial court had made repeated attempts o provide Kasab with a lawyer but he had spurned the offer initially and said he did not want to accept Indian lawyers. The judges said that in the totality of facts, evidences and circumstances the court had no option but to impose death sentence on Kasab. The bench also observed that going by the evidence, it was clear that the conspiracy and planning of the 26/11 attack was hatched in Pakistan.
The High Court stands at the head of a State’s judicial administration. There are 18 High Courts in the country, three having jurisdiction over more than one State. Among the Union Territories Delhi alone has a High Court of its own. Other six Union Territories come under the jurisdiction of different State High Courts. Each High Court comprises of a Chief Justice and such other Judges as the President may, from time to time, appoint.
The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State. The procedure for appointing Judges is the same except that the Chief Justice of the High Court concerned is also consulted. They hold office until the age of 62 years and are removable in the same manner as a Judge of the Supreme Court. To be eligible for appointment as a Judge one must be a citizen of India and have held a judicial office in India for ten years or must have practised as an Adovcate of a High Court or two or more such Courts in succession for a similar period.
Each High Court has power to issue to any person within its jurisdiction directions, orders, or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights and for any other purpose. This power may also be exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or residence of such person is not within those territories.
Each High Court has powers of superintendence over all Courts within its jurisdiction. It can call for returns from such Courts, make and issue general rules and prescribe forms to regulate their practice and proceedings and determine the manner and form in which book entries and accounts shall be kept.