Brief History of the Supreme Court of India

The promulgation of Regulating Act of 1773 established the Supreme Court of Judicature at Calcutta as a Court of Record, with full power & authority. It was established to hear and determine all complaints for any crimes and also to entertain, hear and determine any suits or actions in Bengal, Bihar and Orissa. The Supreme Courts at Madras and Bombay were established by King George – III in 1800 and 1823 respectively. The India High Courts Act 1861 created High Courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency towns. These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India under the Government of India Act 1935.The Federal Court had jurisdiction to solve disputes between provinces and federal states and hear appeal against Judgements from High Courts .After India attained independence in 1947, the Constitution of India came into being on 26 January 1950. The Supreme Court of India also came into existence and its first sitting was held on 28 January 1950.The law declared by the Supreme Court is binding on all Courts within the territory of India.It has the power of judicial review – to strike down the legislative and executive action contrary to the provisions and the scheme of the constitution, the distribution of power between Union and States or inimical to the fundamental rights guaranteed by the Constitution.

The entire judicature has been divided into three tiers. At the top, there is a Supreme Court below it is High Court and the lowest rank is occupied by Session’s Court.

The Supreme Court is the highest court of law. The Constitution says that the law declared by the Supreme Court shall be binding on all small courts within the territory of India. Supreme Court was designed to make it the final authority in the interpretation of the Constitution.

While framing the judicial provisions, the Constituent Assembly gave a great deal of attention to such issues as the independence of the courts the powers of the Supreme Court and the issue of judicial review.

Composition:

Parliament has the power to make laws regulating the constitution, organisation of the jurisdiction and powers of the Supreme Court. The number of judges can be increased as well as decreased by Parliament. Originally there was a provision in the Constitution that there will be Chief Justice and seven other judges. This number (7) was raised to 10 in 1956, 13 in 1960, 17 in 1977 and 25 in 1985 (Article 124).

Appointment of Judges:

The President is the appointing authority in the case of judges of the Supreme Court. Article 124(a). While making appointment of the Chief Justice of India, he may consult such of the judges of the Supreme Court and of the High Court’s as he might consider necessary.

While making appointment of other judges of the Supreme Court, the Chief Justice shall always be consulted (Article 124(i)). In addition to regular judges, if the President feels that the work load is heavy, he can appoint ad hoc judges as well. He is also empowered to invite retired judges to attend the meeting of the court.

Acting Chief Justice

The President can appoint a judge of the Supreme Court as an acting Chief Justice of India when:
-the office of Chief Justice of India is vacant; or

-the Chief Justice of India is temporarily absent; or

-the Chief Justice of India is unable to perform the duties of his office

Qualification of Judges:

To eliminate politics in the appointment of judges, high minimum qualifications have been prescribed.

A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is (a) a citizen of India and (b) either a distinguished jurist; or has been a High Court Judge for at least 5 years or has been an Advocate of a high Court (or two or more such Courts in succession) for at least 10 years ‘Art. 124 (3).

Tenure of Judges:

No minimum age is prescribed for appointment as a Judge of the Supreme Court, nor any fixed period of office. Once appointed, a Judge of the Supreme Court may cease to be so on the happen­ing of any one of the following contingencies; (other than death) (a) on attaining the age of 65 years; (b) on resigning his office by writing addressed to the President; (c) on being removed by the Presi­dent upon an address to that effect being passed by a special majority of each House of Parliament viz. a majority of the total membership of that House and by majority of not less than two-thirds of the members of that House present and voting. The only grounds upon which such removal may take place are (1) ‘proved misbehaviour’ and (2) ‘incapacity’.The age of the Judge of the Supreme Court shall be determined by such authority and in such a manner as Parliament may by law provide. This provision was inserted by Fifteenth Amendment Act 963.

Salaries and Emoluments:

A judge of the Supreme Court gets a salary of Rs. 30,000 per month and the use of an official residence free of rent. The salary of the Chief Justice is Rs. 33,000 per month. (According to the 1998 revision).

Independence of Judges:

Independence of Supreme Court Judge Ensured:

The independence of the Judges of the Su­preme Court is sought to be secured by the Constitution in a number of ways:

(i) Though the appointing authority is the President, acting with the advice of his Council of Minis­ters, the appointment of a Supreme Court Judge has been removed from area of pure politics by requiring the President to consult the Chief Justice of India in the matter.

(ii) By laying down that a Judge of the Supreme Court shall not be removed by the President, except by a difficult process on ground of proved misbehaviour or incapacity of the Judge in question [Article 124 (4)].

(iii) By fixing the salaries of the Judges by the Constitution and providing that though the allowances, leave and pension may be determined by law made by Parliament, these shall not be varied to the disadvantage of a Judge during his term of office [Art. 125 (2)]. But it will be competent for the President to override this guarantee, under a proclamation of ‘Financial Emergency, [Art. 360 (4) (b)].

(iv) By providing that the administrative expenses of the Supreme Court, the salaries and allow­ances, etc., of the Judges as well as of the staff of the Supreme Court shall be ‘charged upon the revenues of India’ i.e., shall not be subject to vote in Parliament [Article 146 (3)].

(v) By forbidding the discussion of the conduct of a Judge of the Supreme Court (or of a High Court) in Parliament, except upon a motion for an address to the President for the removal of the Judge (Article 121).

(vi) By laying down that after retirement, a Judge of the Supreme Court shall not plead or act in any Court or before any authority within the territory of India [Article 124 (7)].

Ad hoc Judges:

Article 127 provides if at any time there is no quorum of the Judges available in the Court to hold and continue any session of the court the chief justice of India may, with the previous consent of the President and after the consultation of the Chief Justice of the High Court concerned, request a Judge of the High Court to act as ad hoc Judge in the Supreme Court for such period as may be necessary.

Removal of Judges

A judge of the Supreme Court can be removed from his office by an order of the President. The President can issue the removal order only after an address by Parliament has been presented to him in the same session for such removal.The address must be supported by a special majority of each House of Parliament (ie, a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting). The grounds of removal are two—proved misbehaviour or incapacity.The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment:
No judge of the Supreme Court has been impeached so far. Impeachment motions of Justice V Ramaswami (1991–1993) and the Justice Dipak Misra (2017-18) were defeated in the Parliament.

Jurisdiction:

The jurisdiction of the Supreme Court is of three kinds—Original, Appellate and Advisory—apart from the jurisdiction to issue the writs to enforce the fundamental rights.

(a) Original Jurisdiction:

Art. 131 deals with original jurisdiction. By original jurisdiction we mean the authority to hear and determine a case in the first instance. It has exclusive jurisdiction to hear a case which cannot be heard or determined by another court. The Supreme Court in its original jurisdiction will not be entitled to entertain any suit where both parties are not units of the federa­tion.

Thus a suit brought by a private individual against the State will not come under this jurisdic­tion. Again international treaties etc. are outside the original jurisdiction. In a federal polity the powers between the Union and the State Governments are delimited and demarcated and, ac­cordingly, it necessitates the presence of an independent judicial authority empowered to interpret the Constitution and secure the rights of the federation and the federating units.

The Constitution vests the Supreme Court with original and exclusive jurisdiction in any dispute; (a) between the Union Government and one or more States; or (b) between the Union Government and any State or States on one side and one or more States on the other; or (c) between two or more Stats, if the dispute involves any question of law or fact on which the existence or extent of a legal right depends.

The Constitution excludes from the original jurisdiction disputes relating to waters of inter-State rivers or river valley referred to a special statutory tribunal, matters referred to the Finance Com­mission, adjustment of certain expenses between the Union and the States.

Again, one class of disputes, though of a federal nature, is excluded from this original jurisdiction of the Supreme Court, namely, a dispute arising out of any treaty, agreement, covenant, engagement; ‘sanad’ or other similar instrument which, having been entered into or executed before the commencement of the Constitution continues in operation after such commencement or which provides that the said jurisdiction shall not extend to such a dispute. But these disputes may be referred by the President to the Supreme Court or its advisory opinion.

(b) Appellate Jurisdiction:

As a court of appeal, the Supreme Court is the final appellate tribunal of the land. There can be two types of cases—criminal, in which some criminal activities are involved and civil, in which there may be disputes regarding property, etc.

The appellate jurisdic­tion of the Supreme Court may be further divided under three heads:

(1) Article 132 of the Consti­tution provides for an appeal to the Supreme Court from any judgement or final order of a court in civil, criminal or other proceedings of a High Court, if it involves a substantial question of law as to the interpretation of the Constitution. The appeal again depends upon whether the High Court certifies and if does not, the Supreme Court may grant special leave to appeal cases involving interpretation of the Constitution;

(2) Article 133 of the Constitution provides that an appeal in civil cases lies to the Supreme Court from any judgement order or civil proceedings of a high court. This appeal may be made if the case involves a substantial question of law of general importance or if in the opinion of High Court the said question needs to be decided by the Supreme Court i.e. civil cases irrespective of any constitutional question;

(3) Article 134 provides the Supreme Court with appellate jurisdiction in criminal matters from any Judgement, final order or sentence of a High court, i.e. criminal cases, irrespective of any constitutional question.

Appeals can be made to the Supreme Court only by special leave of that court but if a particular case involves a substantive question of law as to the interpretation of the constitution, an appeal can also be made to the Supreme Court if the High Court concerned has certified that such a question is involved.

The Supreme Court can, however, take up the case even if the High Court has refused to grant such a certificate, if it is satisfied that a substantive question of law as to the interpreta­tion of the Constitution is involved in the case.

In all other cases, where constitutional questions are not involved, an appeal can be made to the Supreme Court only if the High Court has certified that (a) the case involves a substantive question of law, and (b) in the opinion of the High Court, the said question should be decided by the Supreme Court.

So far as the criminal cases are concerned, an appeal can be made to the Supreme Court against any judgment, final order or sentence in a criminal proceeding of a High Court as of right concerning specified classes of cases:

(a) In case the High Court has, on appeal against the decision of a lower court, reversed an order of acquittal of an accused person and sentenced him to death, or (b) in case the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted an accused and sen­tenced him to death.

These two exceptions make it very clear that in cases relating to a sentence of death by the High Court, an appeal can always be made to the Supreme Court. In other criminal cases, where a sentence of death is not involved, an appeal can be made to the Supreme Court only on the basis of the High Court certifying that the case is a fit one for appeal to the Supreme Court.

Parliament has the right to make laws if it so desires, conferring on the Supreme Court further powers to her appeal on criminal matters. The Supreme Court, however, has been vested by the Constitution with powers to interfere in the decisions not only of the High Court but also of any other court or tribunal within the territory of India.

“Notwithstanding anything in this Chapter”, says Article 131(1), the Supreme Court may in its discretion grant special leave to appeal from any judgement, decree, determination, sentence or order in any case or matter passed or made by any court or a tribunal in the territory of India.” These are, indeed, wide powers.

The Supreme Court under these powers can entertain and hear appeals by granting special leave against any kind of judgement of order made by any court or tribunal in any proceeding and the exercise of this power is left entirely to the discretion of the Supreme Court.

No restrictions can be binding on the Supreme Court so far as these powers are concerned excepting that it has been deterred by the Constitution to interfere with decisions of a military tribunal and this power cannot be cur­tailed by any legislation unless Article 136 itself as amended by Parliament.

(c) Advisory Jurisdiction:

The President may under Article 143(1) make a reference to the Su­preme Court for its consideration and opinion for any question of law or fact which is of such a nature and of such public importance that it is expedient to obtain the Court’s opinion on it.

The President may refer such a question not only where it has actually arisen but also where it appears to the President that it is likely to arise. The President can, accordingly, refer to the Supreme Courts the question whether a proposed Bill will be intra Vires of the Constitution. Such references are heard by a Bench consisting of a least five Judges and the Court follows the procedure of a regular dispute that comes before it.

The opinion of the Court is pronounced in open Court. It may not be a unanimous opinion and the dissenting Judges can give their separate opinion. But the opinion of the Supreme Court is not binding on the President as it is not of the nature of a judicial pronouncement. It is also not obligatory on the Supreme Court to give its opinion; it may or may not.

Under Clause (2) of Article 143 the President may refer to the Supreme Court for its opinion on disputes arising out of any treaty, agreement, etc, which had been entered into or executed before the commencement of the Constitution. In the case of such references, it is obligatory for the Supreme Court to give its opinion to the President.

Technically, no court in India is bound by the advisory opinion of the Supreme Court but such opinions are always respected by the courts.

(d) Writ Jurisdiction:

The jurisdiction of the Supreme Court to entertain an application under Art. 32 for the issue of a constitutional writ for the enforcement of Fundamental Rights are sometimes treated as an ‘original’ jurisdiction of the Supreme Court. It is no doubt original in the sense that the party aggrieved has the right to directly move the Supreme Court by presenting a petition, instead of coming through a High Court by way of appeal.

Nevertheless, it should be treated as a separate jurisdiction since the dispute in such cases is not between the units of the Union but an aggrieved individual and the Government or any of its agencies. In the matter of Fundamental Rights, and of Fundamental Rights only, a citizen can move the Supreme Court directly by presenting a petition to it without going to any lower court at all and it becomes the responsibility of the Supreme Courts to ensure that the rights treated as fundamental by the Constitution are enjoyed by every citizen of the country.

Other Powers:

Decrees or orders passed by the Supreme Court in the interests of justice are enforceable through­out the territory of India. The Supreme Court has also been given the power under Article 142 to secure the attendance before it of any person within the territory of India or to order the discovery and production of any documents, or the investigation or punishment of any contempt of itself.

The supreme power of the Supreme Court, however, lies in its being the ultimate interpreter and guardian of the Constitution in which capacity its power embraces not only the interpretation of the Constitu­tion but also that of the laws of the Union, the States and local authorities.

Like the highest court in other countries, the Supreme Court of India, too, is not bound by its own decisions. It can reconsider its own decisions provided that such review is in the interest of the community and justice. An application for review may be filed with the Registrar of the Court within thirty days after its judgement is delivered in appeal and it should briefly and, distinctly state the grounds for review.

The application for review must also be accompanied by a certificate by the Bar Council that it is supported by proper grounds. Any such review is undertaken by a larger bench than the one which passed the original judgement. The Supreme Court’s power to review its earlier deci­sions helps it to correct any decision which may be deemed erroneous.

Constitution of India constitutes India into a Sovereign Socialist, Sovereign and Democratic, republic Nation. Socialist Nation is a Nation which allows an individual to collect wealth subject to reasonable restrictions with regard to the rights of Wealth less people to have opportunity to develop them.

In the very concept of socialism an attempt is made out to strike a judicious balance between the Capitalism and communism.

This constitutional mandate of Socialism rightly directed India’s Foreign Policy for around Four decades of Independence. In this period we had closed economy at home with object of achieving self reliance in food production as well as Industrial Growth which will guarantee employment to masses. This policy of self development rightly kept away India from Capitalist European and America States.

But with the fall of Soviet Russia in late 1990, the international support of India’s economic policy withered away, which results in to temporary set back to our slow but sustained all inclusive growth at home. This ultimately forced India to adopt major changes in India’s foreign Policy.

India opened its huge market for Multinational companies from Capitalist Countries and to facilitate them government of India decide to adopt disinvestment in public sector units which results into transfer of wealth from public/ people to a few corporate houses individuals. Here we started sidelining the constitutional spirit of socialist Nation and make moves towards a Capitalist Country. This shift was so swiftly incorporated by India’s policy makers that only gloomy side of this shift was visible and dark side was intellectually covered under the carpet.

Rightly after adopting this change in policy India came closer to the countries having capitalist set up. Many individuals and corporate Houses from India also started imprinting their marks in Forbs list of riches men on the earth, we can Name a few, Ambani brothers, Bharti Mittal, etc.

Collection of wealth by a Handful of a few is misunderstood by this country as a development of the nation when majority of the population of this country is not at all part of this capitalist growth. India is developing but Bharat is loosing its existence and countrymen of Bharat are increasing committing suicide across length and breadth of this country. One this is crystal clear in this model of growth that India is shifting from a socialist country to a Capitalist Nation.

Big question is, whether this shift is constitutionally permissible? Answer to this question is in negative and can easily found in the letters and words of the Constitution of India.

Starting from the Preamble to the Chapter of Fundamental rights which allow every individual to adopt and Carry on any business trade or calling but allows the Government to create monopoly in its favor and to have control over national wealth in the interest of public. More Particularly in Part four of the constitution which speaks of Directive principles of State Policy specifically directed government of India to adopt and design policies which will keep India’s socialist fabric intact, and model of growth must be based on the inclusive growth, inclusive of all literate and illiterate, poor and rich farmers and businessmen, and not exclusive of poor and downtrodden. Our Commitment to these constitutional goals directed India’s Foreign policy till 1990s.

India should be very much careful in carving and implementing its foreign policy as it has direct correlation with the well being of the people of this country. Countrymen here are not homogeneous socially, economically and politically, still there exist a wide gap amongst the people of this country as to their economic status, upbringing and understanding. India needs a few ore year to bring its majority living in villages to the mainstream of this country. Only and only after that we can adopt a foreign policy, which Government of India has prematurely adopted today. Moreover Capitalism shall never be a dominating factor while designing foreign policy for this country. My honest submission before this august gathering of experts of Law and polity is

1. There is an urgent need to reconsider India’s foreign policy from constitutional perspective.
2. Goals set out under Part III and Part IV of the Constitution must be respected and achieved will all efforts.
3. India’s foreign policy must not ignore major stake holder of this Country i.e. a farmer.
4. India must not do away with our Gandhian Philosophy of Self reliance and all inclusive growth.
5. In the development of India we shall not forget Bharat.