LEGAL AWARENESS-2

THE SUPREME COURT:-

The establishment, constitution, power and the position of the Supreme Court.

On the 28^th of January 1950, two days after India became a sovereign, democratic republic, the S C came into existence. The inauguration took place in the Chamber of Princes in the parliament building which also housed the Indian Parliament, consisting of the Council of States or the Rajya Sabha and the House of the People or the Lok Sabha. During the inaugural proceedings the Judges of the Federal court took their seats. In attendance were the Chief Justice of the H C of the Allahabad, Bombay, Madras, Orissa, Assam, Nagpur, Punjab, Saurashtra, Patiala and the East Punjab states Union, Mysore, Hyderabad, M P and Travancore – Cochin. Along with them was present the Attorney General for India, M C Setalvad. After its inauguration on 28^th January, 1950 the S C commenced its sittings in a part of the Parliament House. The Court moved into the present building in 1958. 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. The original constitution envisaged a S C with a Chief Justice and 7 other puisne judges- leaving it to the Parliament to increase its no. At present, currently, the S C of India comprises the Chief Justice and 30 other puisne judges appointed by the President of India. The S C judges retire upon attaining the age of 65 years. In order to be appointed as a judge of the S C, a person must be a citizen of India, and must have been, for at least 5 years, a judge of the H C or of two or more such courts in succession, or an advocate of an H C or of two or more such courts in succession for at least 10 years or he must be in the opinion of the President, a distinguished jurist. The Constitution seeks to ensure the independence of the S C judges in various ways. A judge of the S C cannot be removed from the office except by an order of the President passed after an address in each House of the Parliament supported by a majority of the total membership of that House and by a majority of the not less than two third of the members present and voting, and presented to the President in the same sessions for such a removal on the ground of the proved misbehaviour or incapacity. The proceedings of the S C are conducted in English only. The S C rules, 1966 are framed under the Art. 145 of the Indian constitution to regulate the practice and the procedure of the S C.

The Supreme Court Registry:-

The Registry of the S C is headed by the Registrar General who is assisted in his works by the three Registrars, 4 additional registrars, 12 joint registrars, etc. Art. 146 of the Indian constitution deals with the appointments of the officers and the servants of the S C Registry.

Attorney General:-

The Attorney General for India is appointed by the President of India under the Art. 76 of the Indian constitution and holds the office during the pleasure of the President. He must be a person qualified to be appointed as a judge of the S C. It is the duty of the Attorney general for India to give the advice to the Govt of India upon such legal affairs and to perform such other duties of legal characters as may be referred or assigned to him by the president. In discharge of his duties or functions, the Attorney general is assisted by the Solicitor general and four additional solicitor generals.

The Supreme Court Advocates:-

There are 3 categories of the Advocates who are entitled to practice the law before the S C of India:

  1.            The Senior advocates:

These are the advocates who are designated as the senior advocates by the S C of the India or by any H C. The Court can designate any advocate, with his consent, as senior advocate if in its opinion by the virtue of his ability, standing at the Bar or special knowledge or the experience in law the said advocate is deserving of such distinction. A senior advocate is not entitled to appear without an advocate on record in the S C or without a junior in any other court or the tribunal in India. He is also not entitled to accept the instructions to draw the pleadings or the affidavits.

  2.            Advocates on Record:

Only these advocates are entitled to file any matter or document before the S C. They can also file an appearance or the act for a party in the S C.

  3.            Other advocates:-

These are the advocates whose names are entered on the roll of any state bar council maintained under the Advocates Act, 1961 and they can appear and argue any matter on behalf of the party in the S C but they are not entitled to file any document or matter before the court.

Public Interest Litigation:-

The S C has started entertaining the matters in which the interest of the public at large is involved and the court can be moved by any individual or group of individuals either by filing a writ petition at the filing counter of the court or by addressing a letter to the Hon’ble the Chief Justice of India highlighting the question of the public importance for invoking this jurisdiction. Such a concept is particularly known as the Public Interest Litigation and several matters of the public importance have become the landmark cases. This concept is unique to the S C of India only and perhaps no other court in the world has been exercising this extra ordinary jurisdiction.

The Provisions of the Legal aid:-

If a person belongs to the poor section of the society having the annual income of less than rs. 18000 or belong belongs to the Schedule Cast or the Schedule Tribe, a victim of the natural calamity, is a woman or a child or a mentally ill or otherwise disabled person or an industrial workman, or is in custody including the custody in protective home, he or she is entitled to get the free legal aid from the S C Legal Aid Committee. The aid so granted by the Committee includes the cost of the preparation of the matter and all the applications connected therewith, in addition to providing an advocate for preparing and arguing the case. Any person desirous to of availing the legal service through the committee has to make an application to the secretary and hand over all the necessary documents concerning his case to it. The committee after ascertaining the eligibility of the person provides the necessary legal aid to him or her.

Amicus Curiae:-   

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 the 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 the amicus curiae if it thinks it necessary in case of an unrepresented party; the court can also appoint the amicus curiae in any matter of the general public importance or in which the interest of the public at large is involved. As per Art. 124 of the Indian constitution, there shall be a S C of India consisting of a Chief Justice of India and, until the Parliament by law prescribes a large no. of not more than seven other judges. Now the present no. of judges is 25.

Qualifications of the President of India  

A person shall not be qualified for the appointment as the judge of the S C unless he is a citizen of India and:

  a.  Has been for at least 5 years a judge of the H C or of two or more such courts in the succession; or

  b.  Has been for at least 10 years an advocate of a H C or of two or more such courts in succession; or

  c.  Is, in the opinion of the president a distinguished jurist.

The appointment of the Acting Chief Justice:-

The Art. 126 of the Indian Constitution provides for the appointment of the acting chief justice. When the office the chief justice of India is vacant or when the Chief justice is, by the reason of absence or otherwise, unable to perform the duties of his office, the duties of his office shall be performed by such one of the other judges of the court as the President may appoint of the purpose.

The Supreme Court to be a Court of Record:-

The S C shall be a court of record and shall have all the powers of such a court including the power to punish for the contempt of itself. The S C shall sit in Delhi or in any such place, as the Chief Justice of India may with the approval of the President from time to time appoint.

The review of the Judgments or the Orders by the Supreme court:-

Subject to the provisions of any law made by the Parliament or any rules made under the Art. 145 of the Indian constitution dealing with the rules of the court, the S C shall have the power to review any judgment pronounced or the order made by it.

The law declared by the Supreme Court to be binding on all courts:-

The law declared by the S C shall be binding on all the courts within the territory of India. The enforcement of the decrees and the orders of the S C and orders as to the discovery, etc. The S C in the exercise of its jurisdiction may pass such decree or make such orders as is necessary for doing the complete justice in any cause or the matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such a manner as may be prescribed by or under any law made by the Parliament and, until the provision in that behalf is so made, in such manner as the president may by order prescribe.

The jurisdiction of the Supreme Court:-

The original jurisdiction of the Supreme Court: The S C shall have the original jurisdiction to the exclusion of any other court in any of the following types of the dispute:

  a.  The disputes between the Govt of India and one or more states; or

  b.  The disputes between the Govt of India and any state on one side and one or more states on the other; or

  c.  The disputes between two or more states.

It will resolve the dispute that involves any question, whether of law or fact, on which the existence or extent of a legal right depends. In addition, Art. 32 of the Indian Constitution gives an extensive original jurisdiction to the S C in regard to the enforcement of the Fundamental Rights. It is empowered to issue the directions, orders or writs, including the writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition to enforce them. The S C has been conferred with the power to direct transfer of any civil or criminal case from one state H C to another state H C or from a court subordinate to another state H C.

The appellate jurisdiction of the Supreme Court in appeals from the High Courts in certain cases: An appeal shall lie to the S C from any judgment, decree or final order of a H C in the territory of India whether in a civil, criminal or other proceedings if the H C certifies under the art. 134 A that the cases involve a subsequential question of law as to the interpretation of the Constitution.

The appellate jurisdiction of the Supreme Court in appeals from the High Court in regard to civil matters: An appeal shall lie to the S C from any judgment, decree or final order in a civil proceeding of a H C in the territory of India if the H C certifies under the art. 134 A:

  a.  That the case involves a substantial question of law of general importance; and

  b.  That in the opinion of the H C the said question needs to be directed by the S C.

The appellate jurisdiction of the Supreme Court in regard to criminal matters:  An appeal shall lie to the S C from any judgment final order or sentence in a criminal proceedings of a H C in the territory of India if the H C:

  a.  Has on appeal reversed an order of acquittal of an accused person and sentences him to death; or

  b.  Has withdrawn for trail 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.  Certificates under the art. 134 A that the cases are a fit one for the appeal to the S C.

The advisory jurisdiction of the Supreme Court: The S C has special advisory jurisdiction in matters which may specially be referred to it by the president of India under the art. 143 of the Constitution.