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Final Countdown for IAS Prelims 2014 Day: 20
August 8, 2014 50 Days Countdown No comments
1. Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal. According to the Constitution
of India, the role of the Supreme Court is that of a federal court and guardian of the Constitution.
Composition of Supreme Court
Under Article 124(1) the constitution originally provided for 1 Chief Justice of India and not more than 6 other
judges. The constitution authorizes the Parliament to provide by law in fixing the Strength of the Supreme Court.
The Parliament passed the Supreme Court (Number of Judges) thus accordingly, a Constitutional Amendment
Act in 2008 has increased the strength of Supreme Court to 31 (1 Chief Justice + 30 other judges).
1.1 Qualification to be a judge of Supreme Court
1. A person must be a citizen of India
2. He/she must have been, for at least five years, a Judge of a High Court or of two or more such Courts in
succession
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.
1.2 Appointment of Judges of Supreme Court:
While appointing the Chief Justice of India the President may consult such judges of the Supreme Court or High
Courts as he deems considers it necessary. Thus this clause does not impose any binding on President.
However, while appointing the other Judges of Supreme Court the President shall consult the Chief Justice of
India and such other judges of Supreme Court as he may deem it necessary. The President is thus constitutionally
obliged to consult the Chief Justice of India.
Regarding the appointment of judges in Supreme Court, the Supreme Court in SP Gupta Vs Union of India
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1982 case held that the opinion of the Chief Justice of India expressed under Article 124(2), 217(1) and 222(1)
was not binding on the President. It was more consultation with the Chief Justice of India. However the
consultation with the Chief Justice of India shall be effective i.e. all the material facts relating to the persons who
are under consideration for appointment as judges shall be made available to the Chief Justice of India. The court
also ruled that a judge of the High Court can be transferred from one High Court to another even without his
consent.
However in a landmark judgment the Supreme Court in SCARA Vs Union of India 1993 case overruled its
earlier decision and explicitly stated the process of appointment of the judges of Supreme Court.
(1) The apex court held that the opinion expressed by Chief Justice of India in all the above cases is not his
personal opinion but should be considered as the opinion of the entire judiciary. Therefore, the opinion expressed
by the Chief Justice of India under the above three articles shall enjoy primacy.
(2) The Chief Justice of India is the sole authority to initiate the process of appointing the judges of Supreme
Court.
(3) He shares his authority with the Chief Justice of respective High Courts in appointment and transfer of judges
of High Courts.
(4) However the Chief Justice of India while forming his opinion shall consult at least two of the senior most
judges of the Supreme Court. Such consultations with the other judges shall be formal and in the form of writing.
(5) If the President refers the opinion of the Chief Justice of India for his reconsideration with a cogent reasons,
then any opinion expressed by the Chief Justice of India after such reconsiderations shall be binding on the
President.
(6) The Chief Justice of India shall follow the consultation process once again while reconsidering his opinion.
Thus the Judiciary emerged as the most important authority in the appointment of the judges.
The Supreme Court in the Re appointment of Judges 1998 act further clarified the legal position on this issue.
The Supreme Court stated that:
(1) The opinion of the Chief Justice of India does not constitute consultation under these three articles i.e. Article
124(2), 217(1) and 222(1).He shall have to consult collegiums of Judges while forming his opinion.
(2) In case of appointment of the Judges of Supreme Court and in the transfer of the High Court judges the Chief
Justice of India shall consult at least four of the senior most judges of the Supreme Court.
(3) While appointing the judges of the High Courts he shall consult at least two of the senior most Judges of the
Supreme Courts.
(4) While appointing and transferring the Judges of High Courts in addition of consulting the senior judges of
Supreme Courts.
(5) The Chief Justice of India should also consult the Chief Justice of the respective High Courts.
1.3 Jurisdictions of Supreme Court
Original jurisdiction
The court has exclusive original jurisdiction over 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.
Article 32 of the Constitution grants 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.
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Appellate jurisdiction
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court
concerned under Articles 132(1), 133(1) or 134 of the Constitution in respect of any judgment, 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.
The Supreme Court can also grant special leave under article 136(1) to appeal from a judgment or order of
any non-military Indian court.
Parliament has the power to enlarge the appellate jurisdiction of the Supreme Court and has exercised this
power in case of criminal appeals by enacting the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970.
Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies
Advisory jurisdiction
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.
1.4 Removal of judges of Supreme Court
Article 124(4) provides for the removal of a judge of the Supreme Court. He is removed by the President upon
an address by both the Houses of the Parliament supported by a majority of not less than 2/3rd of members
present and voting and a majority of total strength of the House on the ground of misbehavior or incapacity. The
President shall pass the order of removal in the same session in which the Parliament passed the resolution.
Article 124(5) confers the power on the Parliament to provide by law for the procedure for the Presentation of
an address and for the investigation for proof of misbehavior or incapacity of a judge. Accordingly the Parliament
passed Judges (Inquiry) Act 1968 which states that a resolution seeking the removal of a judge of Supreme
Court can be introduced in either House of Parliament.
It should be supported by not less than 100 member of Lok Sabha.
If it is to be introduced in Rajya Sabha it should be supported by no less than 50 members of Rajya Sabha.
Once the resolution is initiated in either house of the parliament, the presiding officer of that House shall appoint
a three member Judicial Committee to investigate into charges and provide proof of misbehavior or incapacity.
The judicial committee shall be headed by a serving judge of the Supreme Court. Second member can be a
serving judge of the High Court and the third member can be an eminent jurist. The Supreme Court in the Sub-
Committee on Judicial Accountability Vs Union of India 1992 case held that the judges (inquiry) Act is
constitutionally valid as it merely regulates the powers of the Parliament.
The Court divided the entire process of removal of a judge into two parts mainly Judicial Act and Political Act.
Whenever the authority concerned does not enjoy discretionary power it is called Judiciary act and the judge
concerned does not enjoy the right to be heard in such cases.
The judicial parts consist of:
1. The presiding officer appointing a three member judicial committee.
2. Judicial committee investigating the charges.
3. The President passing the order of removal of a Judge
Whereas the political parts consist of:-
(1) Introduction of resolution in Parliament.
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(2) Houses of Parliament passing the resolution.
The Court also clarified that the Parliament is not bound to pass the resolution even if the judicial committee
establish proof of misbehavior or incapacity. However, if the Judicial Committee failed to provide proof of
misbehavior or incapacity, the Parliament cannot take up the resolution process further.
1.5 Cases of removal of judges in India
In 1992, Justice V. Ramaswami of the Supreme Court, who was found guilty by an inquiry committee set up
by the Lok Sabha Speaker, could not be removed from office because the Congress members in the House had
abstained during voting, leading to the defeat of the motion seeking his removal.
In 2011, Justice Soumitra Sen of the Calcutta High Court was found guilty by the inquiry committee set up to
investigate the charges against him. While the Rajya Sabha passed the motion to remove him from office, the Lok
Sabha did not proceed with the debate and voting on the motion because he had, in the mean time, resigned.
In 2011, Justice Dinakarans case sets it apart from these two earlier cases, as it is the first time a judge has
been allowed to scuttle an inquiry against him by simply resigning.
2. Public Interest Litigation
Public Interest Litigations may be defined as a litigation that seeks to protect and promote the interests of the
public at large.
Public Interest Litigations is a judicial instrument. The basic purpose of which is to achieve public good. The
concept has originated in USA where it is called Social Interest Litigations. The Supreme Court of India has
successfully incorporated the concept of Public Interest Litigations into Indian jurisprudence.
Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in the court.
Public Interest Litigations is purely a Judge made Law and the Judiciary derives powers to issue Public Interest
Litigations from its powers of writ jurisdiction and Judicial Review.
Therefore, only the Supreme Court and High Courts enjoy the jurisdiction to issue Public Interest Litigations. The
objective of the Public Interest Litigations is to provide inexpensive and speedy justice to the people and enforce
the legal obligation of legislative and executive towards people and maintains the Rule of Law.
It is generally used to protect and promote the group interest and not individuals interest for which the
Fundamental Rights has been provided.
The rules relating the Public Interest Litigations have been formulated by the Supreme Court:
(1) These rules include that any public spirited individual or organization can litigate before the courts under the
Public Interest Litigations unless the principle of Locus Standii does not apply.
(2) Further the court may waive the payment of regular court fees for litigating before it. The court may also
arrange for legal aid in pursuing the case.
(3) The court also clarified that even a postcard addressed to the court can be treated as a writ petition interest
and Public Interest Litigations can be filed.
(4) The court can address the Public Interest Litigations both against the government of states and the
government of Union of India.
(5) The court may provide relief in the forms of directions or orders including payment of compensation to the
effected parties.
Advantages
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(1) The Public Interest Litigations has helped in increasing awareness among people about their own rights and
the role of judiciary in protecting these rights.
(2) It is primarily through Public Interest Litigations the court has expended the scope of the Fundamental Rights
by interpreting them liberally.
Disadvantages
1) PIL are often misused for filing frivolous cases without investment of heavy court fees as required in private
civil litigation.
2) They add to the burden on the judicial process by increasing the number of filed cases, this often overload the
courts and delay the judicial processes
3) The lowering of the locus standi requirement has permitted privately motivated interests to pose as public
interests.
3. Judicial Review
Judicial Review means the power of the Supreme Court and High Courts to declare a law as unconstitutional and
void if it is inconsistent with any of the provisions of the constitution to the extent of such inconsistency. The
power of judicial review is available to the Court not only against the legislature but also against the executive.
The concept of Judicial Review was originated USA and has been incorporated in the Indian constitution.
However the provision of Judicial Review is not explicitly mentioned in the constitution. In so far as the
Fundamental Rights are concerned the Judicial Review is explicitly mentioned in Article 13 of the constitution.
Further in any Democratic constitution, the government is subjected to in its functioning The Doctrine of Limited
Government. It is this limitation on the powers of executive and Legislature that implicitly confers the power of
Judicial review on the judiciary.
The powers of Government are limited by various concepts of the constitutions such as supremacy of
constitution, division of power between Centre and the State, separation of power etc.
The judiciary while declaring a law as unconstitutional and void does not suggest any remedy or alternative. It is
for the government to rectify the deficiency in law as indicated by judicial pronouncement. While applying the
Judicial Review, the judiciary follows following three Principles:
(1) Where there are two interpretations, where the first interpretation would make the law valid and the Second
interpretation would make the law void, than the Court shall prefer the first over the second and afford the
validity of law.
(2) Ordinarily the Court shall not pronounce on the legal validity of the act which has not been brought into the
legal enforcement.
(3) Ordinarily, the Court shall not apply Judicial Review suo-motu (on their own) and shall do so only on the
basis of a petition or a reference made by the authority concerned.
3.1 Significance of Judicial Review
The Judicial Review has helped in the following ways:
(i) Legitimization of the Governments actions protected by the courts of law against the undue encroachment by
the government.
(ii) Maintaining the supremacy of the Constitution.
(iii) Safeguarding the Fundamental Rights
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(iv) Maintaining the division of power between centre and State.
(v) Maintaining the balance among the three organs of the State and the
(vi) Rule of law.
Realizing the importance of Judicial Review the Supreme Court in Minerva Mills Vs Union of India 1980 case
held that the Judicial Review is a part of basic structure of the constitution which cannot be destroyed even by
means of an amendment to the Constitution.
4. The Attorney-General of India
The Attorney General of India is the first law officer of the government of India.
4.1 Appointment of Attorney General of India {Article 76(1)}
The Article 76(1) states that the Attorney General of India is appointed by the President. In order to be
appointed as the Attorney General a person must be qualified to be appointed as a judge of the Supreme Court.
4.2 Duties of Attorney General of India
(1) To give advice to the Government of India on legal matters.
(2) To perform other legal duties that are referred or assigned to him by the President.
(3) To discharge functions conferred on him by the Constitution or any other law.
In the performance of his duties the Attorney General of India shall have the right of audience in all the courts in
India.
He is also entitled to take part in the proceedings of the Parliament and the Parliamentary Committees without
the right to vote.
He represents the Union and the States before the courts but is also allowed to take up private practice
provided the other party is not the State. Because of this Attorney General of India is not paid salary but a
retainer to be determined by the President. He gets retainer equivalent to the salary of a Judge of the Supreme
Court.
Appointment of Attorney General of India is a political appointment and therefore, whenever there is a change in
the party in power the Attorney General of India resigns from his post to enable the new Government to appoint
a nominee of its choice.
The Attorney General is assisted by two Solicitors-General and 4 Additional Solicitors-General.
5. ELECTION OF THE VICE-PRESIDENT
1. The Vice-President is elected by an electoral college consisting of members of both Houses of Parliament, in
accordance with the system of proportional representation by means of the single transferable vote and the voting
in such election is by secret ballot. The Electoral College to elect a person to the office of the Vice-President
consists of all members of both Houses of Parliament.
2. The Vice-President should not be a member of either House of Parliament or of a House of a Legislature of
any state. If a member of either House of Parliament or of a House of a Legislature of any state is elected as
Vice-President, he is deemed to have vacated his seat in that House on the date he/she enters his office as Vice-
President.
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3. A person cannot be elected as Vice-President unless he -
a. is a citizen of India;
b. has completed the age of 35 years, and
c. is qualified for election as a member of the Council of States (Rajya Sabha).
A person is not also eligible if he holds any office of profit under the Government of India or a State Government
or any subordinate local authority.
5.1 Removal of Vice President
The Constitution states that the Vice President can be removed by a resolution of the Rajya Sabha passed by an
absolute majority (more than 50% of total membership) and agreed to by a simple majority (50% of voting
members) of the Lok Sabha (Article 67(a)).
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