Supreme Court and the Constitutional

Process
 Introduction
• Supreme Court is the highest court in India.
• It is established in the Chapter IV and part V of
constitution of India.
 Historical Background
• After the victory of British East India Company in Battle of Plassey in
1757, they got Diwani rights in India (To collect revenue) and also got
power to handle civil cases in the country.
• Further, East India Company felt the need to establish uniform system in
India.
• Under Governor General Warren Hastings, Britishers brought Judicial
Plan of 1772. Thus, for the first time it established Uniform Judicial
system in India.
• Under the Regulating Act of 1773, the Federal court in India was
established in Calcutta (Today’s Kolkata). Here there were 1 Chief Justice
and 3 other judges in the court.
• In the year 1937, Government of India Act, 1935 was passed and it
established and shifted Federal Court in Delhi. Here there were 1 Chief
Justice and 2 Other Judges in the court.
• After Independence of India, Federal Court was replaced with Supreme
Court on 28 January 1950.
 Historical Background
• In 1950, the strength of Supreme Court was 1
Chief Justice and 7 other judges.
• Current Strength of Supreme Court is 1 Chief
Justice and 33 other judges.
 Role of Supreme Court
1. Guardian of the Constitution: The Supreme Court is
the Judicial Court in India. It upholds and uplifts the
rule of law and also ensures and protects citizens’
rights and liberties given in the constitution.
2. Guarantor of the Fundamental Rights: If the Supreme
Court observes that the fundamental rights as given in
the constitution being violated, it is empowered by
Article 32 of the constitution to issue writs to enforce
them. E.g. Habeas Corpus, Mandamus, Quo-
Warranto, Prohibition and Certiorari.
3. Sole Authority of resolving disputes relating to elections of President
or Vice-President: According to Article 71 of the Indian Constitution, all
doubts and disputes regarding the election of a President or Vice-
President shall be resolved by the Supreme Court of India.
4. Authority to resolve Centre-State disputes: If there is any disputes
between the Centre and State government. Supreme Court plays very
important role as middle man to resolve that disputes. Under Article 131
of the Constitution, the Supreme Court has original jurisdiction to deal
with any dispute between the Centre and a State.
5. It is the highest Court of Appeal: The Supreme Court of India is
supreme judicial authority and the highest court. It is the final court for
appeal for all civil and criminal cases in India. It also has the power
judicial review.
 Eligibility for becoming Supreme Court
Judge
• Article 124 (3) states that a person shall not be qualified for
appointment as a Judge of the Supreme Court unless he/she
qualifies according to following criteria.
• A person should be citizen of India.
• Person should be below 65 years of age. There is no minimum
age is fixed to become judge of Supreme Court of India.
• Should have experience of at least 5 years as an Judge of High
Court or two or more such courts.
• Or, should have experience of at least 10 years as an advocate
of a High Court or of two or more such courts in succession.
• Or, is an distinguished Jurist according to the opinion of
President of India.
 STRENGTH OF THE SUPREME COURT
• Article 124 of the Constitution of India, establishes the
Supreme Court of India and regulates the appointment
of Judges.
• Article 124 (1) deals with the composition of Supreme
Court.
• The framers of the Constitution had fixed strength of the
Supreme Court to one Chief Justice and seven other
judges.
• The power to change the composition of Supreme Court
is given to Parliament.
• Regarding this matter, the Parliament enacted the
Supreme Court (Number of Judges) Act, 1956.
 STRENGTH OF THE SUPREME COURT
• Parliament has amended this act for six times to increase
the number of judges in Supreme Court.
• In 1956 the number was raised to 11. It was further
amended to 14 in 1960, 18 in 1978, 26 in 1986 and 31 in
2009.
• In June 2019, the then serving Chief Justice of India, J.
Ranjan Gogoi wrote to the Prime Minister seeking an
increase in the number of Judges to the Supreme Court.
• In August 2019, in two days the Parliament amended the
Act further to increase the number of Judges to 33 Judges
in addition to a Chief Justice.
 Appointment of Supreme Court Judges
• Article 124 (2) deals with the appointment of Supreme Court
Judges.
• President of India appoints the Judges of the Supreme Court.
• The President shall consult with Chief Justice of India while
appointing the Judges.
• Chief Justice of India shall consult 4 senior most judges of the
Supreme Court. The whole procedure of consultation shall
be in writing.
• The senior most judge shall be appointed as the Chief Justice
of India. Seniority shall be according to the years of services
that person has given in the court.
Removal of Supreme Court Judges
• Article 124 (4) deals with the removal of the
Supreme Court Judges.
• A judge may be removed from office through a
motion adopted by parliament on grounds of
proven misbehaviour or incapacity.
• The constitition provides that a judge can be
removed only by an order of the president, based
on a motion passed by both houses of parliament.
• The procedure for removal of judges is elaborated in
the Judges Inquiry Act, 1968.
 Removal of Supreme Court Judges
• Under the Act, an impeachment motion may originate in either House of
Parliament. To initiate proceedings: (i) at least 100 members of Lok Sabha
may give a signed notice to the Speaker, or (ii) at least 50 members of
Rajya Sabha may give a signed notice to the Chairman. The Speaker or
Chairman may consult individuals and examine relevant material related
to the notice. Based on this, he or she may decide to either admit the
motion or refuse to admit it.

• If the motion is admitted, the Speaker or Chairman (who receives it) will
constitute a three-member committee to investigate the complaint. It
will comprise: (i) a Supreme Court judge; (ii) Chief Justice of a High Court;
and (iii) a distinguished jurist. The committee will frame charges based
on which the investigation will be conducted. A copy of the charges will
be forwarded to the judge who can present a written defence.
 Removal of Supreme Court Judges
• After concluding its investigation, the Committee will submit its
report to the Speaker or Chairman, who will then lay the report
before the relevant House of Parliament. If the report records a
finding of misbehaviour or incapacity, the motion for removal will
be taken up for consideration and debated.
• The motion for removal is required to be adopted by each House
of Parliament by: (i) a majority of the total membership of that
House; and (ii) a majority of at least two-thirds of the members of
that House present and voting. If the motion is adopted by this
majority, the motion will be sent to the other House for adoption.
• Once the motion is adopted in both Houses, it is sent to the
President, who will issue an order for the removal of the judge.
 Jurisdiction of Supreme Court-Art 131:
Original Jurisdiction
• Art 131 deals with Original Jurisdiction.
• As a federal court, the Supreme Court has the right
to settle disputes between the different units of
Indian Federation as as:
• Any dispute between the Indian Government and
one or more States.
• Any dispute between the Indian Government and
one or more States on one side and one or more
States on the other side.
• Any dispute between two or more States.
 Jurisdiction of Supreme Court-Art. 32: WRITS ISSUED BY SUPREME
COURT
Art: 32 deals with writs jurisdiction of Supreme Court and High Court. Writs
are issued by courts to protect the fundamental rights of an individual.
1. Habeas Corpus
• The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’
This writ is used to enforce the fundamental right of individual liberty
against unlawful detention. Through Habeas Corpus, Supreme Court/High
Court orders one person who has arrested another person to bring the
body of the latter before the court
• The Supreme Court or High Court can issue this writ against both private
and public authorities.
• Habeas Corpus can not be issued in the following cases:
– When detention is lawful
– When the proceeding is for contempt of a legislature or a court
– Detention is by a competent court
– Detention is outside the jurisdiction of the court
 Jurisdiction Of Supreme Court-Art 32: Writs Issued By
Supreme Court And High Court
2. Mandamus
• The literal meaning of this writ is ‘We command.’ This writ is used by the court to
order the public official who has failed to perform his duty or refused to do his
duty, to resume his work. Besides public officials, Mandamus can be issued against
any public body, a corporation, an inferior court, a tribunal, or government for the
same purpose.
• Unlike Habeas Corpus, Mandamus cannot be issued against a private individual.

3. Prohibition
• The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position
issues a Prohibition writ against a court that is lower in position to prevent the
latter from exceeding its jurisdiction or usurping a jurisdiction that it does not
possess. It directs inactivity.
• Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
• It can’t be issued against administrative authorities, legislative bodies and private
individuals or bodies.
 Jurisdiction of Supreme Court-Art 32: Writs Issued By
Supreme Court And High Court

4. Certiorari
• The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To
be informed.’ This writ is issued by a court higher in authority to a
lower court or tribunal ordering them either to transfer a case pending
with them to itself or quash their order in a case. It is issued on the
grounds of an excess of jurisdiction or lack of jurisdiction or error of
law. It not only prevents but also cures for the mistakes in the judiciary.
5. Quo-Warranto
• The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority
or warrant.’ Supreme Court or High Court issue this writ to prevent
illegal takeover of a public office by a person. Through this writ, the
court enquires into the legality of a claim of a person to a public office
 Jurisdiction of Supreme Court – Appellate
Jurisdiction
• The Supreme Court is the highest Court of Appeal from all
courts. Its appellate jurisdiction may be divided into:
• Cases involving interpretation of the Constitution – civil,
criminal or otherwise;
• Civil cases, irrespective of any Constitutional question; and
• Criminal cases, irrespective of any Constitutional question
• Interpretation of Law: If High Court certifies that there is
need of interpretation of law in any case then authority to
interpret law lies with Supreme Court.
• The interpretation of law in constitutional cases, civil cases
and criminal cases are done by the Supreme Court.
 Jurisdiction of Supreme Court-Article 143:
Advisory Jurisdiction
• Article 143 of the Constitution of India confers the advisory jurisdiction of
the supreme court which provides that the President of India may seek
the opinion of the Supreme Court in the following categories :
• Any question of law may likely be with respect view of public importance
where the President deems it expedient to obtain such an option and On
any dispute arising out of any prior constitutional agreement or treaty.
• The Supreme Court can tender or reject its opinion to the President of
India in the first case but the Supreme Court has to tender its opinion to
the President in the second case.
• Here we have to note that, in both these cases, the opinion expressed by
the Supreme Court is merely advisory and not a legal pronouncement, so
the judiciary opinion of the Supreme Court is not binding on the
President.
 Jurisdiction of Supreme Court- Article 137:
Review Jurisdiction
• Review Jurisdiction is covered under Article 137, through
which the Supreme Court has the authority for the
review its judgments. There are two grounds for reviews:
• If it finds error on the face of recording which may leads
to wrong judgment or
• If in case new evidence has been found which was not
available earlier despite the best attempt by the party.
• For example, in Kesavananda Bharti case (1973), the
Supreme Court departed from its previous judgement in
the Golak Nath case (1967).
 Powers of Supreme Court
1. A Court of Record
As a Court of Record, the Supreme Court has two
powers:
(a) The Judgments, proceedings and acts of the
Supreme Court are recorded for the perpetual
memory and testimony. These records cannot be
questioned when produce before any court.
(b) It has power to punish for contempt of court, either
with simple imprisonment for a term up to six
months or with fine up to Rs.2000 or with both.
 Powers of Supreme Court
2. Power of Judicial Review
• Judicial review is power of the Supreme Court
to examine the constitutionality of legislative
enactments and executive orders of both
central and state government.
• Supreme Court can declare such enactments
and executive orders to be null and void if
they find it to be violating constitution.
 Powers of Supreme Court
3. Constitutional Interpretation
• The Supreme Court is the ultimate interpretor of
the constitution. It can give final version to the
spirit and content of the provisions of the
constitution.
• Supreme Court applies various doctrines in
interpreting the constitution. E.g. Doctrine of
Severability, Doctrine of Harmonious Construction,
Doctrine of Liberal Interpretation, etc.
 Powers of Supreme Court
4. Other Powers
• It enquires into the conduct and behaviour of the chairman
and members of the Union Public Service Commission. if it
finds them guilty of misbehaviour, it can recommend to the
president for their removal.
• It is authorised to withdraw the cases pending before the
high courts and dispose them by itself. It can also transfer a
case or appeal pending before one high court to another high
court.
• Its law is binding on all courts in India. Its decree or order is
enforceable throughout the country.
• It has power of judicial superintendence and control over all
the courts and tribunals functioning in the entire territory of
the country.
 Independence Of Supreme Court
• The Supreme Court has been assigned a very
significant role in the democratic political system.
• 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 and the legislature.
• The Constitution has made certain provisions to
safeguard and ensure the independent and impartial
functioning of the Supreme Court.
 Provisions to maintain Independence Of
Supreme Court
1. Mode of Appointment
• The Judges of the Supreme Court are appointed by the President
(which means cabinet) in consultation with members of Judiciary
itself.
• This provision ensures that there will be no interference of
executive or judiciary while appointing the Judges.
2. Security of Tenure
• The Judges of the Supreme Court are provided with the security of
tenure.
• They can be removed from office by president through very long
and difficult process.
• This ensures judges about their security of tenure. This is obvious
from the fact that no Judge of the Supreme Court has been
removed so far.
 Provisions to maintain Independence Of
Supreme Court
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
parliament.
• It cannot be reduce after their appointment except during a financial
emergency.
• This ensures judges of their conditions of services that it will remain
same during their term of office.
4. Conduct of Judges cannot be discussed
• The constitution prohibits any discussion in Parliament or in a State
Legislature with respect to the conduct of judges, except when an
impeachment (Removal motion) motion is under consideration of the
Parliament.
 Provisions to maintain Independence Of
Supreme Court
5. Ban on Practice after retirement
• The retired judges of the Supreme Court
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.
 Provisions to maintain Independence Of
Supreme Court
6. Power to Punish for its Contempt
• The Supreme Court can punish any person for
its contempt/disrespect.
• This power is vested in the Supreme Court to
maintain its authority, dignity and honour.
7. 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.
 Provisions to maintain Independence Of
Supreme Court
8. Its Jurisdiction cannot be curtailed
• The Parliament is not authorized to curtail the
jurisdiction and powers of the Supreme Court.
9. Separation from Executive
• Constitutionally, Executive authorities cannot
posses the Judicial Powers. This stops it from
interfering in Supreme Court matters.
 Judicial Activism
Meaning/Definition of Judicial Activism
• Judicial activism means the proactive role played by the Judiciary
in the protection of the rights of citizens and promotion of justice
in the society.
• It is also about assertive role played by the Judiciary to force
legislature and executive to discharge their constitutional duties.
• “Judicial activism is a way of exercising judicial power that
motivates judges to depart from normally practised strict
adherence to Judicial precedent in favour of progressive and new
social policies. It is commonly marked by decision calling for
social engineering, and occasionally these decisions represent
intrusion in the legislative and executive matters”.
• The concept of judicial activism is closely related to the concept
of Public Interest Litigation (PIL).
 Justification of Judicial Activism
According to Dr. B.L. Wadehra, the reasons for judicial activism
are as follows:
i. When the legislature and Executive fail to discharge their
respective functions. It results in erosion of the confidence
in the constitution and democracy amongst the citizens.
ii. The Citizens of the country look up at to the Judiciary for
the protection of their rights and freedoms.
iii. Judicial Enthusiasm: Judges like to participate in the social
reforms that take place in changing times.
iv. Legislative Vacuum: There may be certain areas, where
legislative provision is lacking. Therefore, there is need of
Court to step in.
v. In India, Constitutionally Judiciary has enough scope to
legislate or to play an active role in solving issues of the
people.
 Activators of Judicial Activism
1. Civil Rights Activists
2. People Rights Activists
3. Consumer Rights Groups
4. Bonded Labour Groups
5. Citizens for Environmental Action
6. Citizen Groups against Large Irrigation
7. Rights of Child Groups
8. Custodial Rights Groups
9. Poverty Rights Groups
10. Indigenous People’s Rights Groups
11. Women’s Rights Groups
Judicial Activism Vs. Judicial Restraints
• While delivering a Judgement in December 2007, the Supreme
Court of India called for restraint and asked courts not to take
over the functions of the legislature or executives.
• The concerned bench of Supreme Court made many
observations. One of them was as followed:
• “We are repeatedly coming across cases where judges are
unjustifiably trying to perform executive or legislative
functions. This is clearly unconstitutional. In the name of
Judicial activism, judges cannot cross their limits and try to
take over functions which belonged to another organ of state.”
• The Bench also said, “The justification often given for judicial
encroachment on the domain of the executive or the
legislature is that the other two organs are not doing their job
properly. Even assuming this so, the same allegations can be
made against the judiciary too because there are cases
pending in courts for half-a-century.”