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judge so appointed should be qualified for appointment as a judge
of the Supreme Court. It is the duty of the judge so appointed to
attend the sittings of the Supreme Court, in priority to other duties
of his office. While so attending, he enjoys all the jurisdiction,
powers and privileges (and discharges the duties) of a judge of
the Supreme Court.
Retired Judge
At any time, the chief justice of India can request a retired judge of
the Supreme Court or a retired judge of a high court (who is duly
qualified for appointment as a judge of the Supreme Court) to act
as a judge of the Supreme Court for a temporary period. He can
do so only with the previous consent of the president and also of
the person to be so appointed. Such a judge is entitled to such
allowances as the president may determine. He will also enjoy all
the jurisdiction, powers and privileges of a judge of Supreme
SEAT AND PROCEDURE
Seat of Supreme Court
The Constitution declares Delhi as the seat of the Supreme Court.
But, it also authorises the chief justice of India to appoint other
place or places as seat of the Supreme Court. He can take
decision in this regard only with the approval of the President.
This provision is only optional and not compulsory. This means
that no court can give any direction either to the President or to
the Chief Justice to appoint any other place as a seat of the
Supreme Court.
Procedure of the Court
The Supreme Court can, with the approval of the president, make
rules for regulating generally the practice and procedure of the
Court. The Constitutional cases or references made by the
President under Article 143 are decided by a Bench consisting of
at least five judges. All other cases are decided by single judges
and division benches. The judgements are delivered by the open
court. All judgements are by majority vote but if differing, then
INDEPENDENCE OF SUPREME COURT
The Supreme Court has been assigned a very significant role in
the Indian democratic political system. It is a federal court, the
highest court of appeal, the guarantor of the fundamental rights of
the citizens and guardian of the Constitution. Therefore, its
independence becomes very essential for the effective discharge
of the duties assigned to it. It should be free from the
encroachments, pressures and interferences of the executive
(council of ministers) and the Legislature (Parliament). It should
be allowed to do justice without fear or favour.
The Constitution has made the following provisions to
safeguard and ensure the independent and impartial functioning
of the Supreme Court:
1. Mode of Appointment
The judges of the Supreme Court are appointed by the President
(which means the cabinet) in consultation with the members of the
judiciary itself (ie, judges of the Supreme Court and the high
courts). This provision curtails the absolute discretion of the
executive as well as ensures that the judicial appointments are not
based on any political or practical considerations.
2. Security of Tenure
The judges of the Supreme Court are provided with the Security of
Tenure. They can be removed from office by the President only in
the manner and on the grounds mentioned in the Constitution.
This means that they do not hold their office during the pleasure of
the President, though they are appointed by him. This is obvious
from the fact that no judge of the Supreme Court has been
removed (or impeached) so far.
3. Fixed Service Conditions
The salaries, allowances, privileges, leave and pension of the
judges of the Supreme Court are determined from time to time by
the Parliament. They cannot be changed to their disadvantage
after their appointment except during a financial emergency. Thus,
the conditions of service of the judges of the Supreme Court
remain same during their term of Office.
4. Expenses Charged on Consolidated Fund
The salaries, allowances and pensions of the judges and the staff
as well as all the administrative expenses of the Supreme Court
are charged on the Consolidated Fund of India. Thus, they are
non-votable by the Parliament (though they can be discussed by
it).
5. Conduct of Judges cannot be Discussed
The Constitution prohibits any discussion in Parliament or in a
State Legislature with respect to the conduct of the judges of the
Supreme Court in the discharge of their duties, except when an
impeachment motion is under consideration of the Parliament.
6. Ban on Practice after Retirement
The retired judges of the Supreme Court are prohibited from
pleading or acting in any Court or before any authority within the
territory of India. This ensures that they do not favour any one in
the hope of future favour.
7. Power to Punish for its Contempt
The Supreme Court can punish any person for its contempt. Thus,
its actions and decisions cannot be criticised and opposed by any
body. This power is vested in the Supreme Court to maintain its
authority, dignity and honour.
8. Freedom to Appoint its Staff
The Chief Justice of India can appoint officers and servants of the
Supreme Court without any interference from the executive. He
can also prescribe their conditions of service.
9. Its Jurisdiction cannot be Curtailed
The Parliament is not authorised to curtail the jurisdiction and
powers of the Supreme Court. The Constitution has guaranteed to
10. Separation from Executive
The Constitution directs the State to take steps to separate the
Judiciary from the Executive in the public services. This means
that the executive authorities should not possess the judicial
powers. Consequently, upon its implementation, the role of
executive authorities in judicial administration came to an end.7
JURISDICTION AND POWERS OF SUPREME COURT
The Constitution has conferred a very extensive jurisdiction and
vast powers on the Supreme Court. It is not only a Federal Court
like the American Supreme Court but also a final court of appeal
like the British House of Lords (the Upper House of the British
Parliament). It is also the final interpreter and guardian of the
Constitution and guarantor of the fundamental rights of the
citizens. Further, it has advisory and supervisory powers.
Therefore, Alladi Krishnaswamy Ayyar, a member of the Drafting
Committee of the Constitution, rightly remarked: “The Supreme
Court of India has more powers than any other Supreme Court in
any part of the world.” The jurisdiction and powers of the Supreme
Court can be classified into the following:
1. Original Jurisdiction.
2. Writ Jurisdiction.
3. Appellate Jurisdiction.
4. Advisory Jurisdiction.
5. A Court of Record.
6. Power of Judicial Review.
7. Constitutional Interpretation
8. Other Powers.
1. Original Jurisdiction
As a federal court, the Supreme Court decides the disputes
between different units of the Indian Federation. More elaborately,
any dispute:
(a) Between the Centre and one or more states; or
(b) Between the Centre and any state or states on one side and
one or more other states on the other side; or
(c) Between two or more states.
In the above federal disputes, the Supreme Court has exclusive
original jurisdiction. Exclusive means, no other court can decide
such disputes and original means, the power to hear such
disputes in the first instance, not by way of appeal.
a question (whether of law or fact) on which the existence or
extent of a legal right depends. Thus, the questions of political
nature are excluded from it. Two, any suit brought before the
Supreme Court by a private citizen against the Centre or a state
cannot be entertained under this.
Further, this jurisdiction of the Supreme Court does not extend
to the following:
(a) A dispute arising out of any pre-Constitution treaty,
agreement, covenant, engagement, sanad or other similar
instrument.8
(b) A dispute arising out of any treaty, agreement, etc., which
specifically provides that the said jurisdiction does not extent
to such a dispute.9
(c) Inter-state water disputes.10
(d) Matters referred to the Finance Commission.
(e) Adjustment of certain expenses and pensions between the
Centre and the states.
(f) Ordinary dispute of Commercial nature between the Centre
and the states.
(g) Recovery of damages by a state against the Centre.
In 1961, the first suit, under the original jurisdiction of the
Supreme Court, was brought by West Bengal against the Centre.
The State Government challenged the Constitutional validity of the
Coal Bearing Areas (Acquisition and Development) Act, 1957,
passed by the Parliament. However, the Supreme Court
dismissed the suit by upholding the validity of the Act.
2. Writ Jurisdiction
The Constitution has constituted the Supreme Court as the
guarantor and defender of the fundamental rights of the citizens.
The Supreme Court is empowered to issue writs including habeas
corpus, mandamus, prohibition, quo warranto and certiorari for the
enforcement of the fundamental rights of an aggrieved citizen. In
this regard, the Supreme Court has original jurisdiction in the
sense that an aggrieved citizen can directly go to the Supreme
Court, not necessarily by way of appeal. However, the writ
jurisdiction of the Supreme Court is not exclusive. The high courts
are also empowered to issue writs for the enforcement of the
Fundamental Rights. It means, when the Fundamental Rights of a
citizen are violated, the aggrieved party has the option of moving
either the high court or the Supreme Court directly.
Therefore, the original jurisdiction of the Supreme Court with
regard to federal disputes is different from its original jurisdiction
with regard to disputes relating to fundamental rights. In the first
case, it is exclusive and in the second case, it is concurrent with
high courts jurisdiction. Moreover, the parties involved in the first
case are units of the federation (Centre and states) while the
dispute in the second case is between a citizen and the
Government (Central or state).
There is also a difference between the writ jurisdiction of the
Supreme Court and that of the high court. The Supreme Court can
issue writs only for the enforcement of the Fundamental Rights
and not for other purposes. The high court, on the other hand, can
issue writs not only for the enforcement of the fundamental rights
but also for other purposes. It means that the writ jurisdiction of
the high court is wider than that of the Supreme Court. But, the
Parliament can confer on the Supreme Court, the power to issue
writs for other purposes also.
3. Appellate Jurisdiction
As mentioned earlier, the Supreme Court has not only succeeded
the Federal Court of India but also replaced the British Privy
Council as the highest court of appeal. The Supreme Court is
primarily a court of appeal and hears appeals against the
judgements of the lower courts. It enjoys a wide appellate
jurisdiction which can be classified under four heads:
(a) Appeals in constitutional matters.
(b) Appeals in civil matters.
(c) Appeals in criminal matters.
(d) Appeals by special leave.
(a) Constitutional Matters
In the constitutional cases, an appeal can be made to the
Supreme Court against the judgement of a high court if the high
court certifies that the case involves a substantial question of law
that requires the interpretation of the Constitution. Based on the
certificate, the party in the case can appeal to the Supreme Court
on the ground that the question has been wrongly decided.
(b) Civil Matters
In civil cases, an appeal lies to the Supreme Court from any
judgement of a high court if the high court certifies–
(i) that the case involves a substantial question of law of general
importance; and
(ii) that the question needs to be decided by the Supreme Court.
Originally, only those civil cases that involved a sum of ₹20,000
could be appealed before the Supreme Court. But this monetary
limit was removed by the 30th Constitutional Amendment Act of
1972.
(c) Criminal Matters
The Supreme Court hears appeals against the judgement in a
criminal proceeding of a high court if the high court–
(i) has on appeal reversed an order of acquittal of an accused
person and sentenced him to death; or
(ii) has taken before itself any case from any subordinate court
and convicted the accused person and sentenced him to
death; or
(iii) certifies that the case is a fit one for appeal to the Supreme
Court.
In the first two cases, an appeal lies to the Supreme Court as a
matter of right (ie, without any certificate of the high court). But if
the high court has reversed the order of conviction and has
ordered the acquittal of the accused, there is no right to appeal to
the Supreme Court.
In 1970, the Parliament had enlarged the Criminal Appellate
Jurisdiction of the Supreme Court. Accordingly, an appeal lies to
the Supreme Court from the judgement of a high court if the high
court:
(i) has on appeal, reversed an order of acquittal of an accused
person and sentenced him to imprisonment for life or for ten
years; or
(ii) has taken before itself any case from any subordinate court
imprisonment for life or for ten years.
Further, the appellate jurisdiction of the Supreme Court extends
to all civil and criminal cases in which the Federal Court of India
had jurisdiction to hear appeals from the high court but which are
not covered under the civil and criminal appellate jurisdiction of
the Supreme Court mentioned above.
(d) Appeal by Special Leave
The Supreme Court is authorised to grant in its discretion special
leave to appeal from any judgement in any matter passed by any
court or tribunal in the country (except military tribunal and court
martial). This provision contains the four aspects as under:
(i) It is a discretionary power and hence, cannot be claimed as a
matter of right.
(ii) It can be granted in any judgement whether final or
interlocutory.
(iii) It may be related to any matter–constitutional, civil, criminal,
income-tax, labour, revenue, advocates, etc.
(iv) It can be granted against any court or tribunal and not
necessarily against a high court (of course, except a military
court).
Thus, the scope of this provision is very wide and it vests the
Supreme Court with a plenary jurisdiction to hear appeals. On the
exercise of this power, the Supreme Court itself held that ‘being
an exceptional and overriding power, it has to be exercised
sparingly and with caution and only in special extraordinary
situations. Beyond that it is not possible to fetter the exercise of
this power by any set formula or rule’.
4. Advisory Jurisdiction
The Constitution (Article 143) authorises the president to seek the
opinion of the Supreme Court in the two categories of matters:
(a) On any question of law or fact of public importance which
has arisen or which is likely to arise.
(b) On any dispute arising out of any pre-constitution treaty,
In the first case, the Supreme Court may tender or may refuse
to tender its opinion to the president. But, in the second case, the
Supreme Court ‘must’ tender its opinion to the president. In both
the cases, the opinion expressed by the Supreme Court is only
advisory and not a judicial pronouncement. Hence, it is not
binding on the president; he may follow or may not follow the
opinion. However, it facilitates the government to have an
authoritative legal opinion on a matter to be decided by it.
So far (2019), the President has made fifteen references to the
Supreme Court under its advisory jurisdiction (also known as
consultative jurisdiction). These are mentioned below in the
chronological order.
1. Delhi Laws Act in 1951
2. Kerala Education Bill in 1958
3. Berubari Union in 1960
4. Sea Customs Act in 1963
5. Keshav Singh’s case relating to the privileges of the
Legislature in 1964
6. Presidential Election in 1974
7. Special Courts Bill in 1978
8. Jammu and Kashmir Resettlement Act in 1982
9. Cauvery Water Disputes Tribunal in 1992
10. Rama Janma Bhumi case in 1993
11. Consultation process to be adopted by the chief justice of