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Supreme Court of India
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The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal.
Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the provincial High Courts.
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The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal.
Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the provincial High Courts. But it also takes writ petitions in cases of serious human rights violations or if a case involves a serious issue that needs immediate resolution. The Supreme Court of India had its inaugural sitting on January 28,1950, and since then has delivered more than 24,000 reported judgments.
Constitution of the court
On January 28, 1950, two days after India became a sovereign democratic republic, the Supreme Court came into being. The inauguration took place in the Chamber of Princes in the Parliament building. The Chamber of Princes had earlier been the seat of the Federal Court of India for 12 years, between 1937 and 1950, and was the seat of the Supreme Court until the Supreme Court acquired its present premises in 1958.
After its inauguration on January 28, 1950, the Supreme Court commenced its sittings in the Chamber of Princes in the Parliament House. The Court moved into the present building in 1958. The Supreme Court Bar Association is the bar of the highest court. The current president of the SCBA is Mr. P.H. Parekh.
The Supreme Court Building
The Court moved into the present building in 1958. The building is shaped to project the image of scales of justice with the Central Wing of the building corresponding to the centre beam of the Scales. In 1979, two New Wings—the East Wing and the West Wing—were added to the complex. In all there are 15 Court Rooms in the various wings of the building. The Chief Justice's Court is the largest of the Courts located in the centre of the Central Wing.
Composition
The original Constitution of India (1950) provisioned for a Supreme Court with a Chief Justice and 7 lower-ranking Judges—leaving it to Parliament to increase this number. In the early years, a full bench of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and cases began to accumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008. As the number of the Judges has increased, they sit in smaller Benches of two and three (referred to as a Division Bench)—coming together in larger Benches of 5 and more only when required (referred to as a Constitutional Bench) to do so or to settle a difference of opinion or controversy. Any bench may refer the case up to a larger bench if the need to do so arises.
The Supreme Court of India comprises the Chief Justice of India and not more than 30 other Judges appointed by the President of India. However, the President must appoint judges in consultation with the Supreme Court and appointments are generally made on the basis of seniority and not political preference. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and 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 10 years, or the person must be, in the opinion of the President, a distinguished jurist. Provisions exist for the appointment of a Judge of a High Court as an ad-hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court.
The Supreme Court has always maintained a wide regional representation. It also has had a good share of Judges belonging to religious and ethnic minorities. The first woman to be appointed to the Supreme Court was Justice Fatima Beevi in 1987. She was later followed by Justices Sujata Manohar and Ruma Pal.
Justice K. G. Balakrishnan in 2000 became the first judge from the dalit community. In 2007 he also became the first dalit Chief Justice of India. Justice B.P.Jeevan Reddy and Justice A.R.Lakshmanan are the only judges to be elevated to be the Chairman of the Law Commission of India even though they were not the chief justice of India.
Jurisdiction
The Supreme Court has original, appellate and advisory jurisdiction.
Original jurisdiction
It 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, 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 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.
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 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. The Supreme Court can also grant special leave to appeal from a judgement 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 : (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.
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.
Judicial independence
The Constitution seeks to ensure the independence of Supreme Court Judges in various ways. Judges are generally appointed on the basis of seniority and not on political preference. A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in 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 members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity. The salary and allowances of a judge of the Supreme Court cannot be reduced after appointment. A person who has been a Judge of the Supreme Court is debarred from practising in any court of law or before any other authority in India.
Powers to punish contempt
Under Articles 129 and 142 of the Constitution the Supreme Court has been vested with power to punish anyone for contempt of any law court in India including itself. The Supreme Court performed an unprecedented action when it directed a sitting Minister of the state of Maharashtra, Swaroop Singh Naik, to be jailed for 1 month on a charge of contempt of court on May 12 2006. This was the first time that a serving Minister was ever jailed.
Landmark Judgements: Judiciary-Executive Confrontations
Land reform (early confrontation)
After some of the courts overturned state laws redistributing land from zamindar (landlord) estates on the grounds that the laws violated the zamindars' fundamental rights, the Parliament of India passed the First Amendment to the Constitution in 1951 followed by the Fourth Amendment in 1955 to protect its authority to implement land redistribution. The Supreme Court countered these amendments in 1967 when it ruled in that Parliament did not have the power to abrogate the fundamental rights, including the provisions on private property.
Other laws deemed unconstitutional by the Supreme Court
- On February 1, 1970, the Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by Parliament in August 1969.
- The Supreme Court also rejected as unconstitutional a presidential order of September 7, 1970, that abolished the titles, privileges, and privy purses of the former rulers of India's old princely states.
Response from the Parliament of India
- In reaction to the decisions of the Supreme Court, in 1971 the Parliament of India passed an amendment empowering itself to amend any provision of the constitution, including the fundamental rights.
- The Parliament of India passed the 25th amendment, making legislative decisions concerning proper land compensation non-justiciable.
- The Parliament of India passed an amendment to the Constitution of India, which added a constitutional article abolishing princely privileges and privy purses.
Counter-response from the Supreme Court
The Court ruled that the Basic Structure of the Constitution cannot be altered for convenience.
On April 24, 1973, the Supreme Court responded to the parliamentary offensive by ruling in the Kesavananda Bharati v. The State of Kerala case that although these amendments were constitutional, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution's "basic structure", a decision piloted through by Chief Justice Sikri.
The Darkest Hour: Emergency and the Habeas Corpus Case
However, the newfound independence of the judiciary was seriously undermined, and the constitution considerably weakened in what has been called the darkest hour of Indian democracy. This was during
the Indian Emergency (1975-1977) of Indira Gandhi. In an atmosphere where a number of High courts had agreed with the rights of detainees under the
restrictive Maintenance of Internal Security Act, the case
of
, popularly known as the Habeas Corpus case, came up for hearing in front of the
Supreme Court. A bench with five of its seniormost judges
decided for unrestricted powers of detention during emergency. Justices A.N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg, stated in the majority decision:
no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.
The only dissenting opinion was from Justice H. R. Khanna, who stated:
- detention without trial is an anathema to all those who love personal liberty... A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed.
Before delivering his dissenting opinion, Justice Khanna had mentioned to his sister: I have prepared my judgment, which is going to cost me the Chief Justice-ship of India."
True to his apprehensions, he was superseded for the post of Chief Justice in January 1977, despite being the most senior judge at the time.
In fact, it was felt that the other judges may have gone along for this very reason. Justice Khanna remains a legendary figure among the legal fraternity in India for this decision.
The New York Times, wrote of this opinion: "The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court's decision appears close to utter surrender."
During the emergency period, the government also passed the 39th
amendment, which sought to limit judicial review for the election of the Prime Minister; only a body constituted by Parliament could review this election. The court tamely agreed with this curtailment (1975), despite the earlier Keshavanand decision.
Subsequently, the parliament, with most opposition members in jail during the emergency, passed the 42nd Amendment which prevented any court from reviewing any amendment to the constitution with the exception of procedural issues concerning ratification. A few
years after the emergency, however, the Supreme court rejected the absoluteness of the 42nd amendment and reaffirmed its power of judicial review in the case (1980).
As a final act during the emergency, in what Justice V. R. Krishna Iyer has called "a stab on the independence of the
High Court", judges were moved helter-skelter across the country, in concurrence with Chief Justice Beg.
Post-1980: An Assertive Supreme Court
Fortunately for Indian jurisprudence, the "brooding spirit of the law" referred to by Justice Khanna was to correct the excesses of the emergency soon enough.
After Indira Gandhi lost elections in 1977, the new government of Morarji Desai, and especially law minister Shanti Bhushan (who had earlier argued for the detenues in the Habeas Corpus case), introduced a number of amendments making it more difficult to declare and sustain an emergency, and reinstated much of the power to the Supreme Court. It is said that the Basic Structure doctrine, created in Kesavananda, was strengthened in Indira Gandhi's case and set in stone in .
The Supreme Court's creative and expansive interpretations of Article 21 (Life and Personal Liberty), primarily after the Emergency period, have given rise to a new jurisprudence of public interest litigation that has vigorously promoted many important economic and social rights (constitutionally protected but not enforceable) including, but not restricted to, the rights to free education, livelihood, a clean environment, food and many others. Civil and political rights (traditionally protected in the Fundamental Rights chapter of the Indian Constitution) have also been expanded and more fiercely protected. These new interpretations have opened the avenue for litigation on a number of important issues. It is interesting to note that the pioneer of the expanded interpretation of Article 21, Chief Justice P N Bhagwati, was also one of the judges who heard the ADM Jabalpur case, and held that the Right to Life could not be claimed in Emergency situations.
Recent Important Cases
Among the important pronouncements of the Supreme Court post 2000 is the Coelho case (I.R. Coelho v. State of Tamil Nadu (Judgment of 11the January, 2007). A unanimous Bench of 9 judges reaffirmed the basic structure doctrine. An authority on the Indian Constitution, former Attorney-General Soli Sorabjee commented on the judgment, "The judgment in I.R. Coelho vigorously reaffirms the doctrine of basic structure. Indeed it has gone further and held that a constitutional amendment which entails violation of any fundamental rights which the Court regards as forming part of the basic structure of the Constitution then the same can be struck down depending upon its impact and consequences. The judgment clearly imposes further limitations on the constituent power of Parliament with respect to the principles underlying certain fundamental rights. The judgment in Coelho has in effect restored the decision in Golak Nath regarding non-amendability of the Constitution on account of infraction of fundamental rights, contrary to the judgment in Kesavananda Bharati’s case. With the utmost respect the judgment is not conducive to clarity. It has introduced nebulous concepts like ‘the essence of the rights’ test. Besides apart from the express terms of Articles 21, 14 and 19, what are the ‘the principles underlying thereunder’? One does not have to be a prophet to visualize further litigation to explain the Coelho judgment which is sure to add to the prevailing confusion." This comment was made in a lecture in Oslo, as reported on the reputed Indian blog 'Law and Other Things' http://lawandotherthings.blogspot.com/2008/10/soli-jsorabjees-critique-of-ircoelho.html.
Another important decision was of the five-judge Bench in Ashoka Kumara Thakur v. Union of India; where the constitutional validity of Central Educational Institutions (Reservations in Admissions) Act, 2006 was upheld, subject to the "creamy layer" criteria. Importantly, the Court refused to follow the 'strict scrutiny' standards of review followed by the United States Supreme Court. At the same time, the Court has applied the strict scrutiny standards in Anuj Garg v. Hotel Association of India (2007) (Tarunabh Khaitan, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1246892)
In Aravalli Golf Course and other cases, the Supreme Court (particularly Justice Markandey Katju) has expressed reservations about taking on an increasingly activst role.
Corruption and Misconduct of Judges
The year 2008 has seen the Supreme Court in one controversy after another, from serious allegations of corruption at the highest level of the judiciary, expensive private holidays at the tax payers expense, refusal to divulge details of judges' assets to the public,secrecy in the appointments of judges', to even refusal to make information public under the Right to Information Act. The Chief Justice of India K.G.Balakrishnan invited a lot of criticism for his comments on his post not being that of a public servant, but that of a constitutional authority. He later went back on this stand. The judiciary has come in for serious criticisms from both the current President of India Pratibha Patil and the former President APJ Abdul Kalam for failure in handling it's duties. The Prime Minister, Dr.Manmohan Singh, has stated that corruption is one of the major challenges facing the judiciary, and suggested that there is an urgent need to eradicate this menace.
The Union Cabinet of the Indian Government has recently introduced the Judges Inquiry (Amendment) Bill 2008 in Parliament for setting up of a panel called the National Judicial Council, headed by the Chief Justice of India, that will probe into allegations of corruption and misconduct by High Court and Supreme Court judges. However, even this bill is allegedly a farce, just meant to silence and suppress the public. As per this Bill, a panel of judges themselves will be judging the judges, no inquiry can be initiated against the Chief Justice of India or against retired judges, which is against the principles of natural justice, and a citizen can be punished and fined for any complaint that the judges find "frivolous" or "vexatious", which would discourage genuine complaints against judges.
Senior Judges
- Supreme Court Bench, Justice Arijit Pasayat, Justice V S Sirpurkar and Justice G S Singhvi :
"The time has come because people have started categorising some judges as very honest despite it being the foremost qualification of any judge. It is the system. We have to find the mechanism to stem the rot"
"Has the existing mechanism become outdated? Should with some minor modification, the mechanism could still be effective?"
- Supreme Court Judge, Justice Agarwal:
"What about the character of politicians, lawyers and the society? We come from the same corrupt society and do not descend from heaven. But it seems you have descended from heaven and are, therefore, accusing us."
Senior Government Officials
- Former President of India, APJ Abdul Kalam:
"If longevity of cases continued, people would resort to extra-judicial measures."
- President of India, Pratibha Patil:
At a seminar on judicial reforms
"Judiciary cannot escape blame for delayed justice that is fraught with the risk of promoting the lynch mob phenomenon."
"Time has come when we need to seriously introspect whether our judicial machinery has lived up to its expectations of walking the enlightened way by securing complete justice to all and standing out as (a) beacon of truth, faith and hope."
"Admittedly, the realm of judicial administration is not without its own share of inadequacies and blemishes."
- Former Chief Justice of India, Y. K. Sabharwal:
"The justice delivery system has reached it's nadir"
- External Affairs Minister, Pranab Mukherjee:
"Constructive criticism should be encouraged." He joined the chorus on judicial delays that has resulted in people taking law into their own hands. He underlined the need for strengthening judicial infrastructure.
- Speaker of Lok Sabha, Somnath Chatterjee:
"As a citizen of this country and as a lawyer who had practiced for many decades, it is a matter of agony if there is even a whisper of an allegation against a judicial officer … But the fact is that allegations against judicial officers are becoming a reality. One Chief Justice has said that only 20 per cent of the judges are corrupt. Another judge has lamented that there are no internal procedures to look into the allegations. Therefore, the necessity of a mechanism is being emphasized by the judges themselves. Then the question arises as to how this mechanism would be brought about and as to who would bring it. The fact of the matter is that the judiciary is the only unique institution that has no accountability to the people in a democracy. In this overall context, it is absolutely essential to involve outside elements in the process of judicial accountability."
Sitting Judges of the Court
- K. G. Balakrishnan-Honourable Chief Justice of India
- B. N. Agarwal
- Arijit Pasayat
- S. B. Sinha
- S. H. Kapadia
- C. K. Thakker
- Tarun Chatterjee
- Altamas Kabir
- R. V. Raveendran
- Dalveer Bhandari
- Lokeshwar Singh Panta
- D. K. Jain
- Markandey Katju
- H. S. Bedi
- V. S. Sirpurkar
- B. Sudershan Reddy
- P. Sathasivam
- G. S. Singhvi
- Aftab Alam
- J. M. Panchal
- Mukundakam Sharma
- Cyriac Joseph
Past Chief Justices of India
- H. J. Kania
- M. P. Shastri
- Mehr Chand Mahajan
- B. K. Mukherjee
- Sudhi Ranjan Das
- Bhuvaneshwar Prasad Sinha
- P. B. Gajendragadkar
- A. K. Sarkar
- K. Subba Rao
- K. N. Wanchoo
- M. Hidayatullah
- J. C. Shah
- S. M. Sikri
- A. N. Ray
- Mirza Hameedullah Beg
- Y. V. Chandrachud
- P. N. Bhagwati
- R. S. Pathak
- E. S. Venkataramiah
- S. Mukharji
- Ranganath Misra
- K.N. Singh
- M. H. Kania
- L. M. Sharma
- M. N. Venkatachaliah
- A. M. Ahmadi
- J. S. Verma
- M. M. Punchhi
- A. S. Anand
- S. P. Bharucha
- B. N. Kirpal
- G. B. Pattanaik
- V. N. Khare
- Rajendra Babu
- R. C. Lahoti
- Y. K. Sabharwal
External links
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- Justice B.N. Srikrishna, "Skinning a Cat", (2005) 8 SCC (Jour) 3, available at http://www.ebc-india.com/lawyer/articles/2005_8_3.htm (a critique of judicial activism in India).
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