Supreme Court

Question 1

Articles and part related to supreme court

Answer 1

Article - 124-147 and part V

Question 2

Type of judicial system used in India and its definition
Inspired from?

Answer 2

Single and integrated judicial system - In this type of judicial system there’s a hierarchy of courts in which Supreme court is at the apex. Vertically below which there’s HC at state level and below HC there’s a hierarchy of subordinate courts such as district and session courts.

Government of india Act,1935

Question 3

Difference between Indian and American judiciary:
Type of judicial system
Original jurisdiction
Appellate jurisdiction
Advisory jurisdiction
Discretionary powers
Judicial review scope
Jurisdiction and powers
Defends the rights by

Answer 3

Single and integrated system of courts-Dual system of courts
Confined to federal cases like disputes between C-S,S-S etc - not only federal cases but also related to naval forces, maritime activities, ambassador etc
Constitutional+ civil+ criminal - only constitutional
It has advisory jurisdiction under article 143 - no such power
Discretionary powers are wide due to article 136. SC can grant SLP appeal in any matter against the judgement of any court or tribunal(except military) - no such plenary powers
Scope is limited ( due to PEBL) - Scope is wide(DPL)
Can be enlarged by the parliament - limited to that conferred by the constitution
Acc to PEBL - Acc to DPL

Question 4

Inauguration of SC
Succeeded and replaced?

Answer 4

28 January,1950
Succeeded - the federal court of India
Replaced - the British privy council as the highest court of appeal

Question 5

Composition of SC

Answer 5

Total number of judges - 34(CJI + 33 judges)

Question 6

How can the number of judges of sc increased?

Answer 6

Parliament can increase the number of judges in SC through an Act
SC(number of judges) Amendment Act,2019 - increased number of judges from 31 to 34

Question 7

Appointment of SC judges? - appointed by and process + related SC judgements

Answer 7

Appointed by president
Process(as per constitution):
For CJI - President after consulting such judges of SC + HC + outgoing CJI is also consulted ( conventionally)
For other judges - president after consulting CJI (obligatory consultation) + judges of SC + judges of HC as he deem fit
SC judgements - first judges case (SP Gupta vs UOI, 1981)
-2nd judges case( SC AOR Association vs UOI, 1993
-3rd judges case(presidential reference under article 143)
- 4th judges case ,2014

Question 8

First judges case - judgement and consequences

Answer 8

• the term “consultation” does not means concurrence
• SC held that the opinion of CJI in the matter of appointment of the judges of SC, HC and transfer of judges of is not binding on the president. However an effective consultation must take place between president and cji
• this gave an upper hand to the executive in the appointment

Question 9

Second judges case - judgement and consequences

Answer 9

• consultation means concurrence
  SC overruled its earlier decision and held that opinion of CJI must be given primacy as he is suggesting not his personal view but the view of the judiciary
• such recommendation of CJI shall be in consultation with 2 senior judges of SC and the discussion must be in writing
• the initiation must come from the CJI
• President may refer the opinion of CJI for his reconsideration (on the advice of COM) but opinion of CJI shall be binding after such reconsideration
  Consequence - the executive lost its final say in the appointment of higher judiciary
• the outgoing CJI shall forward the name of next in line to be appointed as CJI (normally the seniormost judge of SC is appointed as CJI although there’s is no constitutional requirement to do so)

Question 10

3rd judges case - judgement and consequences

Answer 10

= SC opined that in regard to the appointment of sc judges — the cji shall consult a collegium of 4 senior most judges ( and if none of the 4 judges of SC is set to become next cji then the judge who is in line to become next cji should also be involved in the consultation)
= decision in collegium is not taken by majority but consensus - no opinion contradictory to the opinion of CJI shall be convened to the president. Even if two judges of the collegium give an adverse opinion then also cji shall not communicate the view to the president. Views expressed must be in writing
= CJI is the sole authority to initiate the process of appointment if SC judges
= appointment of SC judges - cji + 4 senior most judges of SC
= appointment of HC judges - CJI+ 2 senior most judges of SC+ CJ of respective HC
= transfer of HC judges - CJI + 4 senior most judges of SC+ CJ of sending and receiving HC
= Judicial review- opinion expressed by CJI is judicially reviewable but ONLY on the grounds of procedural irregularities

Question 11

4th judges case : reason, judgment and consequences

Answer 11

= parliament amended the constitution through 99th CAA,2014 –Added Article 124A,B,C to the constitution – which sought to establish NJAC which seeks to replace collegium system – due to lack of transparency and accountability in judicial appointment
= 99th CAA and NJAC Act,2014 was challenged – a constitutional bench of 5 judges struck it down with the majority of 4:1 –as it breached judicial independence and violated seperation of power

Question 12

Qualification of a SC judge

Answer 12

1. Citizen of India
2. Judge of a HC or of two or more HC in succession OR Practicing advocate of HC or or more such court for 10 years in succession OR Distinguished jurist in the opinion of the president
3. No minimum age is prescribed by the constitution

Question 13

Oath administered

Answer 13

By the president or someone appointed by him

Question 14

Salaries and allowances

Answer 14

• determined by the parliament from time to time
• cannot be varied to their disadvantage after appointment except during financial emergency under article 360
• charged on CFI

Question 15

Tenure of the SC judges / vacancy in the office

Answer 15

• tenure has not been fixed by the constitution
• three provision related to the tenure in the constitution are:
  1. Holds office until he/she attains the age of 65
  2. Resigns by writing to the president
  3. Removed from the office by president in recommendation of parliament ( manner of removal is prescribed by the parliament)

Question 16

Removal of judges - grounds, process, majority required

Answer 16

Grounds - proved misbehavior or/and incapacity
Procedure - parliament under article 124(5) may by law regulate the procedure of removal of judges of SC —- parliament has passed judges inquiry act,1968
= Removed by the order of the president only after both the houses pass a resolution by a majority of the total membership of the house+ not less than 2/3rd of the members present and voting
✓ a removal motion does not lapse with the dissolution of LS

Question 17

What is judges inquiry act?
What is removal motion?

Answer 17

✓It regulates the procedure relating to the removal of a judge of SC
✓ removal motion - signed by 100 members (in case of LS) or 50(in case of RS) ➡️given to speaker/ chairman (may admit the motion/may refuse to admit)➡️if admitted ➡️ 3 members committee ( CJI/judge of SC+ CJ of a HC+a distinguished jurist) enquire the charges ➡️ if found guilty of charges ➡️ motion can be taken up for consideration by the house

Question 18

What is acting CJI? - what, when?

Answer 18

Art 126 - president can appoint a judge of supreme court as an acting CJI if:
1. Office of CJI is vacant
2. CJI is temporarily absent
3. CJI is unable to perform the duties of the office

Question 19

What is Ad-hoc judge? -why/ how

Answer 19

Art 127- when there is a lack of quorum of permanent judges to hold or continue any sessions of SC ➡️ CJI can appoint a judge of HC as ad-hoc judge(must be duly qualified for the appointment as a SC judge)
Process - only after consultation with CJ of concerned HC + prior consent of president
The ad-hoc judge get all jurisdiction, power and privileges of a SC judge

Question 20

Retired judge

Answer 20

Under article 128 - CJI at any time can request a retired judge of SC/HC(qualified to be a SC judge)➡️ to act as SC judge for a temporary period
Process - only with the prior consent of president+ person appointed

Question 21

Seat of supreme court? - authority/process

Answer 21

Under article 130 - seat is Delhi
However it authorises the CJI to appoint another place as seat of SC only with approval of the president
✓ only optional,not compulsory ➡️ no court can give directions to president or CJI to appoint any other place as seat of SC

Question 22

Procedure of the court

Answer 22

Supreme court ➡️ with the approval of president ➡️ can make rules for regulating the practice and procedures of the court
✓ constitutional cases + references made by president ➡️ decided by a bench of atleast 5 judges
✓all other cases - decided by single judges or divison bench
Process - all judgements are delivered in open court by majority votes

Question 23

Why independence of SC is necessary?

Answer 23

= it is the guarantator of the FR and guardian of the constitution
= it should be free from encroachment, pressure and interference of executive and legislature
= it should be allowed to do justice without any fear or favour
= ensures independence and impartial functioning of the SC

Question 24

How can independence of SC can be ensured?

Answer 24

•mode of appointment - judges are appointed by the president only after consulting the judiciary itself ➡️ curtails absolute discretion of executive and ensure that appointment are not based on any political considerations
•security of tenure: can be removed from office by president only in the manner and grounds mentioned in the constitution ➡️ do not hold office during the pleasure of the president
•fixed service condition: the salaries/allowances/privileges of a sc judge cannot be varied to his disadvantage after the appointment except during FE
•expenses charged on CFI: salaries,allowances and pension of judges and the staff as well as administration expenses are charged on CFI hence non votable by parliament
•conduct of the judges: cannot be discussed in the parliament or state legislature with respect to their duties except when removal motion is in consideration
•ban on practice after retirement: ensures they do not favour anyone in the hope of future favour
•SC can punish for its contempt ➡️ maintains authority, dignity and honour
•freedom to appoint its staff
•its jurisdiction cannot be curtailed however the parliament can extend the same
•seperation of judiciary and executive ➡️ executive authority should not possess judicial powers

Question 25

Jurisdiction of SC - types

Answer 25

The constitution confers very extensive jurisdiction and vast powers to the SC as it the final interpreter of the constitution+ guarantator of the FR
Types:
- original jurisdiction
- writ jurisdiction
- appellate jurisdiction
- advisory jurisdiction
- revisory jurisdiction

Question 26

What is the original jurisdiction of SC?

Answer 26

As a federal court ➡️ SC has original ( power to hear cases in first instance) and exclusive (only SC has the authority to hear such cases) jurisdiction in disputes between the different units of federation:
1. between centre and one or more States
2. between centre and a state on one side and one or more states in the other
3. between 2 or more states

As per Article 71 - disputes regarding the election of president and vice President are alos decided exclusively by SC

Question 27

How can we say if a dispute is of federal character under article 131? - include/ excludes

Answer 27

INCLUDES -
•Must be necessarily between the federal units like centre and state
•must involve a question of of law( whether of law or fact) on which the existence of the legal right if centre or state depends
EXCLUDES-
•Cannot be used to settle political differences between centre and states headed by different political parties
•any suit by private citizen against centre ir state cannot be entertained under this

Question 28

Original jurisdiction does not extend to what case/ exceptions to original jurisdiction?

Answer 28

As per Article 131, original jurisdiction does not extend to:
A. Dispute arising out of Pre-constitutional treaty, agreement, covenant, engagement, sanad or other similar instrument entered into or executed before 26th January 1950 and which has continued in operation thereafter ➡️ only president is the sole authority to decide such matter( though he may refer to the SC for non binding advice)
B. Disputes arising out of any treaty or agreement(intergovernmental treatise like C-S or S-S)which specifically provides that such jurisdiction does not extend to such dispute
C. Inter-state water dispute ( inter-state water dispute act, 1956 has excluded original jurisdiction of the SC in disputes between states wrt use, distribution or control of water of inter state river or river valley)
D. Matters referred to Finance commission
E. Adjustment of certain expenses and pension between C-S
F. Ordinary disputes of commercial nature between C-S
G. Recovery of damages by state against government

Question 29

What is writ jurisdiction? - types , features, SC vs HC

Answer 29

Under article 32 - CPMHQ( Certiorari, prohibition, mandamus, habeas corpus, quo warranto)
Features - ✓aggrieved person can directly go to SC for enforcement of FR
✓The SC has original but not exclusive jurisdiction as HC can also issue writs
✓Can issue writs only for enforcement of FR
✓ SC cannot refuse to issue writs
✓ parliament can confer on the SC the power to issue writs for other purposes also

SC vs HC - scope is narrower than HC as HC can also issue writs for other cases also
✓SC being the guarantator of FR cannot refuse to issue writs while for HC it is a discretionary power

Question 30

What is appellate jurisdiction? - types

Answer 30

What - SC is the highest court of appeal in india and hears appeal against the judgements of lower courts. Types of appeals:
1. Appeals in constitutional cases
2. Appeal in civil matter
3. Appeal in criminal matters
4. Special leave petition

Question 31

Explain the appeal in constitutional matter - When it can be done?

Answer 31

It can be filed against the judgement of High court
When - if HC certifies that case involves a substantial question of law that requires the interpretation of the constitution ( if HC refuses to give certificate then thr SC may grant an SLP for appeal under article 136 if it is satisfied that case does involve a question of law)

Question 32

Explain the appeal in civil matters - when, how , other cases

Answer 32

When - against the judgement of HC
How - if HC certifies that:
•case involves a substantial question of law
•the question needs to be decided by the SC

✓ no appeal in civil cases lies to SC as matter of right (does not need HC certificate to appeal toh SC)
✓ originally only those civil cases that involved a sum of 20,000 rupees could be appealed before SC but this monetary limit was removed by 30th CAA,1972

Question 33

Explain the appeal in criminal matters - what, in what cases

Answer 33

What - against the judgement of HC
In the following cases, an appeal can be filed in SC:
A. if HC has on appeal, reversed an order of acquittal (not guilty) of an accused person and sentenced him to death
B.if HC has taken before itself any case from any subordinate court and convicted the accused person and sentenced him to death
C. certifies that the case is fit for appeal
➡️ parliament can, by law, increase the appellate jurisdiction of SC➡️ therefore the parliament has enacted The SC (enlargement of appellate jurisdiction)Act,1970 ➡️ further authorising SC to hear appeal in following cases:
D.if HC has on appeal reversed an order of acquittal of an accused and sentenced him to imprisonment for life or for not let than 10 years
E. if HC has taken before itself any case from any subordinate courts and convicted the accused person and sentenced him to imprisonment for life or for not less than 10 years

✓ in case A and B ➡️ appeal lies to SC as a matter of right
✓ Further appellate jurisdiction of SC extends to all the cases(civil or criminal) in which federal court of India had jurisdiction to hear appeal against HC but not covered above.

Question 34

What is special leave petition? - features

Answer 34

Art 136 - the SC is authorised to grant in its DISCRETION a special leave from any judgement in any matter passed by any court or tribunal (except court martial and military tribunal)
Features:
•discretionary power and cannot be claimed as a matter of right
•can be granted in any judgement whether final or interlocutary
•can be related to any matter: constitutional, civil, criminal, income tax, labour, revenue etc
•can be granted against any court or tribunal and not necessarily against HC(except military)
•the scope is very wide
•SC itself held that being an exceptional and overriding power it should be used sparingly and only in extraordinary situations

Question 35

What is Advisory jurisdiction? - when it is used? And its features?

Answer 35

Article 143 - SC in its consultative role. It Authorises the president to seek opinion of the SC in 2 categories.
Those two cases/categories are:
•on any question of law or fact if public importance which has arisen or likely to arise ➡️ SC may or may not give opinion (discretion)
•on any dispute arising out of pre- constitutional treaty/agreement ➡️ SC must give its advice

Features:
•it is the COM asking for advice under the name if president
•in advisory jurisdiction - minimum of 5 judges bench should be set up and give advice
•in both the cases, the opinion expressed by SC is only advisory and not judicial pronouncement
•not binding on president ( but conventionally followed
•used 15 times so far
•also known as consultative jurisdiction

Question 36

what is revisory jurisdiction?

Answer 36

SC is a self correcting agency
under article 137 - SC is empowered to review any judgement or order made by it with a view if removing any mistakes or error.➡️ this means even though all the judgements and order made by SC are binding on all courts in India, they are not binding on SC
eg - in KBC,1973 SC departed from its earlier decision in Golaknath case, 1967

Question 37

What is court of record?

Answer 37

Art 129 - constitution says that SC shall be a court of record
power of SC by virtue of being a COR:
•the judgements, proceedings and acts of SC are recorded for perpetual memory and testimony➡️ these records are admitted to be of evidentiary value and cannot be questioned when produced before any court ➡️ they are recognised as legal precedents and references
•It has the power to punish for its contempt( so does a HC under 215)

Question 38

What is contempt of court? -types, what is not contempt, punishment.

Answer 38

In accordance with the provisions of Article 129 and 215, the parliament has passed Contempt of Court Act, 1971 which outlines the procedure in relation to the investigation and punishment for contempt

types of contempt:
•CIVIL CONTEMPT - willful disobedience to any judgement,orde, writ or other processes of court or willful breach of an undertaking given to court
•CRIMINAL CONTEMPT - publication of any matter or doing an act which scandalizes or lowers the authority of the court. Prejudices or interferes with the due course of judicial proceedings. Interferes or obstruct the administration of justice in any other manner.

ACTIONS THAT DO NOT AMOUNT TO COC:
•innocent publication and distribution of some matter
•fair and accurate reporting of judicial proceedings.
•fair and reasonable criticism of judicial act
•comment on administrative side

FEATURES:
The SC power to punish for contempt is not limit to SC only ➡️ it can also punish for contempt of all courts and tribunals in the country.

PUNISHMENT:
Simple imprisonment for upto 6 months or the fine upto 2000 or both( accused may be discharged or the punishment may be remitted on apology being made to the satisfaction of SC)

Question 39

What is article 142? - significance

Answer 39

Article 142-, empowers the SC to make such order as necessary for doing “complete justice”in any matter before it

SIGNIFICANCE:
•gives apex court the power to meet the situations which cannot be effectively tackled by existing provision of law
•has been used to ensure justice to ordinary people who were unable to seek justice due to poverty, illetracy
eg - relief to undertrials who are lodged in jails for long periods.

Question 40

What are other powers of SC?

Answer 40

•enquires the conduct and behaviour of chairman and members if UPSC on reference made by the president ➡️ advice is binding on the president
•it is authorised to withdraw the cases pending before the HC and dispose them by itself
•it can also transfer a case or appeal pending before one HC to another HC
•it has power of judicial superintendence and control over all the court and tribunal in the country

Question 41

Provision regarding the jurisdiction of SC over union list and state list

Answer 41

SC jurisdiction with respect to matter in union list can be enlarged by the parliament
Its jurisdiction over subjects in state list can be enlarged by special arrangements between centre and stare