The existence of an independent and impartial judiciary is an essential prerequisite of a federal form of government. It holds the balance between the central government and the governments of the federating units. It acts as the custodian of democracy and the guardian of the rights and liberties of the people.
Provisions in regard to the judiciary in India are contained in chapters V and VI of the Constitution. Unlike other federal systems, we do not have separate hierarchies of federal and state courts. For the entire Republic of India, there is one unified judicial system- one hierarchy of courts- with the Supreme Court as the highest or the apex court. Then there are High Courts at the state level and subordinate courts below them.
The Supreme Court of India consists of the Chief Justice and 25 other judges, appointed by the president. The Parliament has the power to prescribe the number of judges and no formal amendment of the constitution is required for this purpose.
Qualifications and salary
For appointment as a judge of the Supreme Court a person must be a citizen of India and must have been at least for five years as judge of a High Court or of two or more such courts in succession for at least ten years or he must be in the opinion of the President is a distinguished jurist. Provision has also been made for the appointment of a judge of a High Court as ad hoc judge of the Supreme Court and retired judges of the Supreme Court or of High Court to sit and act as judge of the Supreme Court. The Constitution debars a retired judge of Supreme Court from practicing in any court of law or before any other authority in India. The salary of the judges is charged upon the Consolidated Fund of India.
The judges of the Supreme Court can be removed from office by the President only after an address by each house of Parliament supported by more than two thirds majority of members present and voting has been presented to the President in the same session for removal of the judges on the ground of proved misbehavior or incapacity.
Every person appointed as a judge of the Supreme Court before he enters upon his office, takes an oath before the President or some person appointed in that behalf by him in the form prescribed in the Constitution. The Constitution prohibits a person who has hold office as a judge of the Supreme Court from practicing law before any court in the territory of India (Art 124 (6) and (7)).
Jurisdiction and Functions
The Supreme Court has original, appellate and advisory jurisdiction.
Original jurisdiction means the power to hear and determine a dispute in the first instance. Its exclusive original jurisdiction deals with disputes (1) between the Government of India and one or more states, (2) between the Government of India and any state or states on the one side and one or more states on the other, or (3) between two or more states inter see if and in so far as the dispute involves any question on which the existence or extent of a legal right depends. However, disputes arising out of the provisions of treaties with the former Indian states or to which any such states is parties are excluded from the original jurisdiction of the Supreme Court.
The Appellate jurisdiction of the Supreme Court covers three types of cases: (1) Constitutional, (2) Civil, and (3) Criminal. In Constitutional matters, an appeal lies to the Supreme Court from the decision of a High court whether in civil or criminal proceedings, if the High Court certifies that the case involves a substantial point of law as to the interpretation of the Constitution. In Civil cases, an appeal lies to the Supreme Court from the judgement, decree or final order of a High Court if the High Court certifies that the appeal involves a substantial question of law.
In Criminal cases appeal lies to the Supreme Court from the decision of a High Court if the High Court (a) has an appeal reversed the order of acquittal of an accused person and sentenced him to death, (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death, or (c) certifies that the case is fit for an appeal to the Supreme Court. The Supreme Court can itself give special leave to appeal from the judgement of any court or tribunal in the territory of India. Parliament can, by law extend the appellate jurisdiction of the Supreme Court.
The Constitution has- also given the Supreme Court certain Advisory functions. The President under Art 143 of the Constitution can refer to it any question of law or fact which is considerable public importance for its opinion. Under this jurisdiction even those disputes which involve an interpretation of the treaties and agreements of the former Indian states can be referred to the Supreme Court for its opinion. It, is obligatory on the part of the Supreme Court to give its opinion an all such questions referred to it by the President. The judgments and opinions of the Supreme Court must be declared in open court. The advice given by the Supreme Court, however is not binding upon the President.
An important function of the Supreme Court is to act as the guardian of the Constitution. The Constitution has clearly defined the functions of each organ of the government, each organ has to function according to the provisions of the Constitution. Every law enacted by Parliament or a state legislature should be in consonance with the provisions of the Constitution. To check this Supreme Court has the power of judicial review. Under this power it can examine the legislative enactments and their constitutionality. If any law violates the Constitution the Supreme Court can declare that law invalid. Thus, the Supreme Court can examine the validity of any order of the executive or any law of the legislature. It is in this sense that it has been described as the guardian of the constitution.
The Supreme Court has been empowered by the Constitution to act as the guardian of the fundamental rights enjoyed by the citizens. If any law passed by an state Legislature or the Union Parliament violates the fundamental rights, the Supreme Court can declare it as unconstitutional or ultra virus. On the same ground it can also nullify any executive order. For this purpose the Supreme Court has concurrent jurisdiction with the High Courts. The Supreme Court can issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari and the like for the enforcement of fundamental rights. The Supreme Court has been empowered to review laws passed by the legislature and declare them unconstitutional, if they contravene any provision of the constitution. It is for the Supreme Court to declare what the provisions of the constitution mean. The Supreme Court has power to review any judgements or order made by it earlier. In other words, the Supreme Court is the custodian of the Constitution and highest forum for its interpretation.
Article 129 provides that the Supreme Court shall function as a court of record and shall have all the powers of such a court. Being the highest court, its decisions and judicial proceedings may be presented before any court for the purpose of evidence. They are cited as precedents. They cannot be questioned for their authenticity in any court. Court of record also means that it can punish for its own contempt. But this power is used sparingly and under pressing circumstances, because fair and reasonable criticism of a judicial act in the interest of public good does not constitute contempt.
For the purpose of giving effect to the directions and decisions of the Supreme Court all authorities, civil and judicial in the territory of India, have been made subordinate to the authority of the Supreme Court. The Supreme Court may, from time to time and with the approval of the President, make rules for regulating generally the practice and procedure of the court.