The President of India appoints the judges of the Supreme court on the advice of the council of ministers in consultation with the Chief Justice of India. Article 124 which deals with the appointment of judges, makes it obligatory on the part of the President of India to consult the Chief Justice of India.
In appointing the Chief Justice of India, the President shall, besides the advice of the council of ministers, consult the judges of the Supreme Court and the High courts if he considers it necessary. But, neither the constitution nor the law provides for Chief Justice’s recommendation as to his successor. It is a practice sanctioned by convention.
Normally, the Chief Justice of India is appointed from among the senior-most judges of the Supreme Court. The following are the powers of the Supreme Court:
1. Original Jurisdiction: Article 131 of the constitution deals with the original jurisdiction of the Supreme Court. The original jurisdiction of the Supreme Court is so exclusive that no court in India can take up cases falling under the original jurisdiction.
The original jurisdiction of the Supreme Court is purely federal in character. Matters relating to the problems and disputes arising between the union and the states or between the states are taken up by the Supreme Court. The disputes entertained under the original jurisdiction are:
- A dispute involving the Government of India Vs the state of Union of India.
- A dispute involving the Government of India plus one or more states Vs one or more states.
- A dispute involving one or more states on one side Vs one or more states on the other.
2. Appellate Jurisdiction: The Supreme Court is the highest court in India. Under Appellate jurisdiction, the Supreme court only takes up such cases that come on appeal. It has no power to take up such cases, which is not asked to take up.The appellate jurisdiction can be studied under the following three heads:
a. Constitutional Cases: The cases that come before the Supreme court are as follows: The cases involving a question of law relating to the interpretation of the constitution or certification by the High court. The Supreme Court can take up a case if the High court in its opinion feels that the case involves a substantial question of law, which should be decided by the Supreme court.
b. Civil Cases: Originally Article 133 provided for an appeal against the high court order if it certified that the amount involved was less than Rs. 20,000 and the case is fit for appeal. But, the Law Commission found the logic unreasonable and as a result, the 30th Amendment of 1972 did away with the ceiling of Rs. 20,000. The Supreme Court can take up the civil appeal, if the High court certifies that the case involves a substantial question law of general importance. The certification by the High court is essential in these cases.
c. Criminal Cases: Article 134 provide for an appeal to the Supreme court against the judgment of the High Court under the following conditions: If the High Court has reversed a decision of release of an accused and has given him a death sentence. In a case where the High court has exercised the authority of a lower court and given a death sentence to the accused. In any criminal case if the High court certifies that the case is fit for appeal in the Supreme Court.
3. Special Leave Jurisdiction: Article 136 confers a special power in the hands of the Supreme Court to grant special leave. In hearing appeals the Supreme Court may grant Special Leave petition against any judgment or order made by any court or tribunal, except military tribunal, in a case. The decision is entirely left to the discretion of the Supreme Court. This power, however, is to be used only under exceptional circumstances like matters involving general public interest or in cases of grave injustice or cases in which no appeal is otherwise provided by law.
4. Advisory Jurisdiction: Article 143 confers the power of advisory opinion. In order to break authoritative opinion, the President of India may seek the advisory opinion of the Supreme Court on the matter which is, in his opinion, important and necessary such as disputes arising out of treaty of agreement. However, the advice of the Supreme Court is purely advisory in nature and it is up to the executive to accept it or not. The Supreme Court may decline to give advisory opinion if it finds unnecessary.
5. Power of Judicial Review: The supremacy of the Supreme Court as the guardian of the constitution is emphasized by the power of judicial review. The Supreme court has the power of declaring a law made by the legislature or an executive action as ultra vires (intra vires) or null and void or unconstitutional if it is not in tune with the provisions of the constitution or violative of the fundamental law of the land. This acts as an effective, check on both the legislature and the executive as any decision made or action taken whimsically without regard to the constitution is declared invalid.
6. The Court of Records: The proceedings and judgments of the Supreme Court are kept preserved to be made use of in future cases and judgments, whenever necessary by the lower courts. Those decisions are authoritative records on law whose validity cannot be questioned in any court. The courts of records also have the power to correct its own clerical errors.
7. The Contempt of court: The Supreme Court enjoys the authority of imposing fines or imprisonment for violating the orders of the court (Article 129).
8. Self-correcting Court: The Supreme Court has the power of correcting its own judgments. This is to ensure any loss or damage, physical, emotional or material that may be caused to any person seeking justice. To put it in legal terms, this is to ensure against ‘miscarriage of justice’.
9. Guardian of the Constitution: The Supreme Court enjoys the privilege of protecting the constitution against violation of its provision either by the government or by the people, It is the responsibility of the Supreme Court to see that the laws of the constitution are respected and adhered to by all in India.
By acting as the watchtower of the constitution, it checks against the violation of laws. As guardian of the constitution, the Supreme Court also exercises the power of interpreting the contents of the constitution. Any matter relating to technical interpretation of details or definitions of terms in the constitution is the sole prerogative of the Supreme Court.
10. Enforcement of Fundamental Rights: The Supreme Court is empowered by the constitution to act as the protector and guarantor of the fundamental rights. Under Article 32, the Supreme Court enjoys the power of issuing constitutional writs, also called as writ jurisdiction, for the enforcement of fundamental rights. The writs may be against the government or individuals. The writs are briefly explained as follows:
a. Habeas Corpus: This literally means ‘to have a body’. It calls upon the authority, which arrests a person to produce in court, the person to set him free if he has done nothing wrong. It protects an individual against wrongful confinement.
b. Mandamus: This literally means a command. It is a command issued by the court asking a person to perform his legal duty, which is of public nature.
c. Prohibition: It is a writ issued by the Supreme court to an inferior court restraining it from exercising powers which are not invested in them.
d. Certiorari: It is a writ by which a case is removed from a lower court, which does not enjoy jurisdiction to deal with it.
e. Quo warrato: This writ is issued to prevent a person from illegally occupying a public office to which he is not entitled.
11. Defender of the Federation: The constitution vests the power of settling the disputes and problems between the centre and the states. In order to prevent the conflict of power between the two, the Supreme Court interprets the laws, which help in maintaining the unity of the federation.
12. Miscellaneous functions: The following are the miscellaneous functions of the Supreme court. The Supreme Court has the power of regulating the practice and procedure of the court. It appoints its own clerical establishment and exercises supervision over lower courts. The Supreme Court decides matters relating to the election of the President and Vice-president.
The Supreme Court if satisfied, may withdraw a case on its own or on appeal pending before one or more High courts on a matter involving substantial question of law of general importance (Article 139).The Supreme Court, if necessary, can transfer any case pending before any High court to any other High court. The Supreme Court may also transfer a criminal case from one high court to the other.
