Certain provisions in the constitution ensure the independence of judges. Their salaries and allowances are charged on the consolidated fund of India and thus not subject to vote of Parliament. Their salaries and service conditions can not be changed to their disadvantage during his tenure. Their removal is possible only by the president on the basis of a resolution by the two Houses of the Parliament separately by a special majority. The Chief Justice of India in consultation with the Chief Justice of High Court has suggested a 15 point code of conduct for all judges.
Jurisdiction of the Supreme Court
Article 131 contains type of cases which originate only with the Supreme Court. These relate to dispute between a centre and a state or states or between two or more states. The original jurisdiction of Supreme Court is exclusive which means that other court in India shall have not the power to entertain any such suit.
(Article 132 Constitution matter 132 (1); Civil Cases 133; Criminal Cases (134) Appeal by special leave 136 the Supreme Court is the highest court of appeal in the country. Generally four types of cases fall within the jurisdiction of the Supreme Court—Constitutional, Civil, Criminal and such a case where it may grant special leave to appeal; usually appeal can be made to the Supreme Court if the case involves a substantial question of law regarding interpretation of constitution. Regarding criminal cases, an appeal automatically comes to the Supreme Court when (a) The High Court on an appeal has reserved an order of acquittal of an accused person and sentenced him to death (b) where the High Court withdraws 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.
Advisory Powers (Article 143):
The President may ask the Supreme Court to render advice on any legal or other matter whenever he thinks it necessary. Though such advice is not binding on the President it is respected by President.
Court of Record (Article 129):
The Supreme Court is also a court of records and in this capacity it also enjoys the power to punish for its contempt.
Among its other powers the Supreme Court can make rules regarding the practice and procedure of the court with the approval of the President. It also looks into disputes regarding elections of President and Vice President.
Power of Judicial Review the Supreme Court in India has been vested with power of judicial review. Judicial review can be defined as the right of a court of law to declare the constitutionality or otherwise of a legislative enactment. Being the guardian of Fundamental Rights and arbiter of the constitutional conflicts between the Union and the States with respect to the division of power between them, the Supreme Court enjoins the competence to exercise the power of reviewing legislative enactments of both parliament and the States legislatures.
The power of the court to declare legislative enactment invalid is expressly provided by the constitution under Art 13 which declares that every law in force or every future law inconsistent with or in derogation of the Fundamental Rights shall be void. Other Articles of the constitution (131- 136) have also expressly vested in the Supreme Court the power of reviewing legislative enactments of the Union and the State. It has to be recognized at the same time that the supremacy of the Supreme Court is limited to the field where the legislative power of parliament is circumscribed by limitation put upon it by constitution itself.
The Supreme Court power of judicial review has led to a continuous tug of war between the supreme court on the one hand and the parliament on the other. In Golakhath Vs State of Punjab case 1967, the Supreme Court held that the Parliament could not amend the Fundamental Rights under part III of the constitution. In the Bank Nationalisation and Privy Purse case which came up during the same time, the Supreme Court held similar views.
The Parliament on its part, through 24th Amendment in 1971, assumed for itself, the power to amend the fundamental rights. Subsequently the 25th Amendment held that its measures are taken to implement the Directive principles under Article 39 (b) and (c) enjoining upon the state to prevent concentration of wealth and regulate economy to ensure public good. The Supreme Court could not question their validity on the grounds of infringement of the Fundamental rights.
The 42nd Amendment of the Constitution in 1976 further curtailed the authority of Judicial Review of the Supreme Court. The matters relating to constitutional amendment were placed beyond the purview of the Supreme Courts power of judicial review. Moreover the priority given to the Directive Principles under Art 39 (b) and (c) in the 25th Amendment was now extended to all Fundamental Rights.
However in Minerva Mill case 1980 the Supreme Court held that the unlimited and unchecked power of the Parliament to amend the constitution infringes the basic structure of the constitution. Moreover it also strikes down the superiority given to all Directive Principles over the Fundamental Rights the portion under 25th Amendment only. The Parliament and the Apex Judicial body of the country still remain on their respective stands.
Permanent Lok Adalats:
Parliament has passed the Legal Services Authorities (Amendment) Bill, 2002 which provides for the constitution of permanent Lok Adalats, with Rajya Sabha approving the legislation after a brief debate. In the past few years experience of Lok Adalats had been a happy one and they had so far resolved some 1, 36,00,000 cases.
Law Commission Report:
The Law Commission has suggested a major change in the law of arrest and detention with a view to delineating the power of arrest without warrant vested in the police. No arrest should be made merely for questioning a person as it amounts to unlawful interference with the personal liberty guaranteed by Article 21 of the constitution and to arrest a person on suspicion is an awesome power vested with the police and this must be regulated to prevent abuse. The process is usually large and many of them who are granted bail are unable to avail of the said facility because of their inability to furnish sureties or to comply with the condition of release.
Under the constitution there shall be a High Court in each of the states. However the Parliament has had the power to establish common High court for two or more states. Panjab, Haryana and the Union Territory of Chandigarh have a common high court. Similarly Assam, Nagaland, Manipur, Meghalaya, Tripura, Arunachal Pradesh and Mizoram have a common high court.
The High Court consists of a chief justice and other judges as the president may determine from time to time. The Chief Justice of High Court is appointed by the President in consultation with Chief Justice of India and the Governor of that State. In appointing the other judges of the High Court, the President also consults the Chief Justice of the High Court. To qualify for appointment as High Court Judge a person should have been an advocate of a High Court in succession for at least 10 years or should have held judicial office in Indian Territory for a period of at least ten years.
The Judges of the High Court hold office till the age of 62. Before that they could quit by giving resignation to the President or they can be removed by the President on the ground of proved misbehaviour and incapacity only if parliament passes a resolution for this with a special majority.
The Constitution ensures the independence of the High Court judges in the same manner as it does for the judges of the Supreme Court. The removal of the High Court judges has the same procedure as in the case of a Supreme Court judge. Their salaries are not votable and are charged on the consolidated fund of the state. Their salaries etc. are not varied to their disadvantage after their appointment. It is also laid down that after retirement, a High Court judge shall not plead in a court other than the High court he has held the office.
Powers (a) The High Court is the highest court of appeal in the state in both civil and criminal matters, (b) It exercises supervision over working of courts and tribunals within its jurisdiction and that the lower court discharge their duty properly, (c) It can withdraw a case pending before a subordinate court and may itself dispose off the case and determine the question of law involved in the case or can recommend to the Supreme Court for latters appellate jurisdiction (d) The High Court issues list for the enforcement of Fundamental Rights under Art 226.