The constitution also provides for the appointment of judges on adhoc basis as when required.
Provision exists to appoint retired judges of the Supreme Court and of the High Courts in the States to act as judges of this Courts when called upon to do so. The judges of the Supreme Court are appointed by the president. The latter must consult the chief Justice of the Supreme Court while making appointments of judges of the Supreme Court. He should also consult some existing judges of the Supreme Court while making such appointment.
In the matter of appointment of the Chief Justice of India, the President shall consult such judges of the Supreme Court and of the High Courts as he may deem necessary. A person to be appointed as a. judge of the Supreme Court must be a citizen of India and (a) should have been for at least five years a judge of a High Court or of two or more such Courts in succession or (b) Should have been for the last ten years an advocate of a High Court or of two or more such Courts in succession or (c) Should in the opinion of the- president be a distinguished jurist. The Chief Justice of the Supreme Court draws a monthly salary of Rs. 10.000/- and other judges Rs. 9,000/- each. A part from handsome emoluments, the judges are entitled to free residential accommodation and other allowances and amenities.
Though the appointment of judges is made by the President, the latter cannot remove them from service by the President for proven misbehavior or incapacity only if Parliament passes a resolution for such a removal by to thirds majority of its members President and voting coupled with the majority of its total membership. The Constitution further provides that the emoluments and allowances of the judges cannot be altered to their disadvantage by the union Executive, except during the proclamation of financial emergency. It can, therefore, be concluded that the Constitution has kept the judges free and independent from the control of the Executive. Moreover, the salaries and allowances of the judges have been declared to be a charge on the consolidated fund of India and as such these cannot be put to the vote of parliament. The constitution forbids the discussion of the conduct of a judge of the Supreme Court in parliament, except upon a motion for an address to the president for the removal of the judge. These provisions have been specifically made in the constitution with a view to keep the judges free and independent from the control of parliament.
The constitutions also Laos down that the judges of the Supreme Court cannot start legal practice in any court in India after their retirement. This provision has been especially made to safeguard the dignity of the judges of this suggest tribunal. The retired judges can. However be appointed to High power commissions established by the president from time to time. The foreign account proves conclusively the intention of the farmer of our constitution to keep this august judicial tribunal free the control of the Executive and the legislature, to enable it to be neutral and impartial in the dispensation of justice even of its judgements go against the government of the day.
Normally the supreme court sits at New Delhi but it may meet at a place other than New Delhi if the chief Justice in consultation with the president of India so decides. The Supreme Court being the highest judical tribunal of the country is armed with expensive powers, it exercises original, appellate and advisory jurisdiction. Original jurisdiction: The original jurisdiction of the Supreme Court applies to those cases which can be brought before it in the first instance.
It extends to the following types of cases: (i) Constitutional disputes between the Union Government and the state Governments. (ii) Disputes which arise between and among the various states of the Indian Union. (iii) The constitution gives extensive original jurisdiction to the Supreme Court in regard to the enforcement of Fundamental Rights. It is empowered to issue order or writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and a certiorari to enforce the Fundamental Rights.
(iv) The Supreme Court has been given power to direct the transfer of any civil or criminal cases from one state High Court to another or from a Subordinate court to the concerned High Court. It may also issue orders that a particular case involving a substantial question of general importance should be transferred to itself. Appellate jurisdiction:- It implies that appeals in specific criminal and civil cases can be made to the Supreme Court against the decision of the High Courts.
In Criminal cases, an appeal goes to the supreme court if the High Court (a) has reversed an order of acquittal issued by the session court and sentenced an accused to death or (b) has withdrawn for trial before itself any cases from any court and has in such trial sentenced an accused to death. An appeal in other criminal cases can line with the Supreme Court against the decision of the state High courts if the High court concerned certifies that it is a fit cases for an appeal to the Supreme Court. Appeals in civil cases lie with the Supreme Court only if the concerned High court certifies that the case involves a substantial question of law of general importance and that the said question needs to be decided by the Supreme Court Power to Grant special leave to Appeal: In all cases, civil or criminal, the Supreme Court by itself can grant special leave to appeal before it. This concession may be availed of by those who fail to get a certificate of fitness to the supreme court from the state High courts and other judicial tribunals in the country.
Appeals also lie to the Supreme Court in election disputes, the contempt of court Act, monopolies and Restrictive trade practice Act, etc Guardian of Fundamental Rights:- The Supreme Court is the guardian of Fundamental Right of the citizens. It has the power to issue various types of writs for the protection of Fundamental Rights. This power of the supreme court was curtailed to some extent by the Forty-second constitution Amendment Act,1876 but its original authority has been restored by Forty-forth Amendment Act, 1978 to make this court once again the custodian of the right of the people. Advisory Function or Consultative jurisdiction:- The president of India may refer any question of law or fact of public importance to the Supreme Court for its opinion. Such advice, however, is not binding upon the president. In 1978, the president sought the Supreme Court’s advice on the constitutional validity of setting up special courts to try emergency excesses.
The Supreme court ruled that the special court could be created for the speedy trial of offences committed during the emergency. Judicial Review:- The Supreme Court is the guardian of the constitution. It can declare laws; executive orders and ordinances null and void if there are found to be inconsistent with the constitution. It was in the exercise of this power that the ordinances regarding nationalization of banks and abolition of banks and abolition of privy purses of erstwhile native princes were annulled by the Supreme Court a few years ago. The constitution was later suitably amended to bypass the veto of the Supreme Court. Court of Record:- The Supreme Court is a court of Record. Its judgements are in the nature of judicial precedent and referred to in other court of the country. These are given great weightage and often considered to be as good as laws.
The cases are generally decided by the High Courts and the District court in the light of the judgements handed down by the Supreme Court in specific cases. The Supreme Court also has the power to punish for contempt of itself. The Supreme Court stands at the top of the judicial set-up of the country.
It supervision and controls the working of the High Courts in the states. Its jurisdiction extends to the whole of the country in constitutional law, union laws and state laws. The Supreme Court is thus really supreme in letter and spirit. Writs:- The expression ‘Prerogative Writ’ is one of English common law which refers to extraordinary writs granted by the sovereign as the fountain of justice, on the ground of inadequacy of ordinary legal remedies. In the course of time these write came to be issued by the High court of justice as the agency through which the sovereign exercised his judicial powers and these prerogative writs were issued as extra ordinary remedy in cases where there was either no remedy available under the ordinary law or the remedy available was inadequate.
These writs are habeas corpus, mandamus, prohibition, certiorari and Quo warranto. This empowered the Supreme Court at Calcutta to issue prerogative writs. The writ jurisdiction was restricted to the original jurisdiction of Court. After that, the Indian High Court Act, 1861 was passed under which High Courts were established in Bombay, Calcutta and madras. These courts had power to issue writs. But their jurisdiction was confined only to their original jurisdiction. Latter on, when India adopted the constitution of its own power has been conferred on all High Courts to issue writs. The Constitution of India provides for remedies to every Citizen.
If the executive action of the state is of such a nature as to violate or infringe the Fundamental rights, the Indian citizen can either approach the Supreme Court or the High Court. The constitution under Article 32 empowers the Supreme Court and similarly under the Article 225 the High Court to enforce the Fundamental Rights by passing appropriate order as per the provisions. The Supreme Court can issue directions or order in the nature of ‘Writs’.
Only- Supreme Court or High Court can pass a writ. The writ jurisdiction is conclusive; it is concurrent. The High Court has also been given similar powers as the Supreme Court Again under Article 226 a High Court can issue writs not only for the purpose of enforcement of Fundamental Rights but also for the redress of any other injury or illegality, owing to the contravention of ordinary law provided certain conditions are satisfied. Thus, the High Courts have vast powers under their writ jurisdiction.
The vast powers conferred on High Courts under Article 226 are exercised with circumspection. The Courts, in the exercise of their discretion, pass orders in terms of public interest and equity. Further, Article 226 imposes certain limitations are of two fold. First, the power is to be exercised ‘throughout’ the territories in relation to which it exercises jurisdiction, that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to which the High Court is empowered to issue the writs must be within those territories, and this implies that they must be amenable to the jurisdiction of the Court either by residence or location within those territories except where the cause of action arises. The proceedings under Article 226 are of a summary nature and are not suitable for agitation of disputed questions of fact. If the rights claimed by the applicant of a writ cannot be conveniently determined in summary proceedings, the High Court in exercise of its discretion shall refuse to interfere by a writ under Article 226.
Non compliance of a writ or order issued under Article 226 will be constructed as contempt of Court. Lastly, the remedy envisaged under Article 226 is a special remedy. Thus, the Court has always the discretion to refuse the grant of any writ if it is satisfied that the aggrieved party can have an adequate remedy elsewhere, generally a writ will not be issued if the effect of it will be to perpetuate illegal orders. (a) Writ of Habeas Corpus:- Habas Corpus is a Latin term which means ‘You may have the body’. Such a writ can be issued both by the Supreme Court and the State High Court in cases of illegal arrest or wrongful detention by the government or a private individual. This type of writ is a sure guarantee of personal liberty. The writ is issued in the form of an order calling upon a person by whom another person is detained, to bring that the person before the Court and the let the Court know by what authority he has detained that person.
If the Court fined that there is no legal justification for detention the Court will order immediate release of the detained person. The main object of the writ is to give quick and immediate remedy to a person who is unlawfully detained by the person whether in prison or private custody. The writ of habeas Corpus is in the nature of order calling upon a person who has detained another to produce the latter before the Court in order to examine the legality of the detention and to set him free if there is no legal justification for the detention. A detention can be said to be unlawful if it is not in accordance with law, or the procedure established by law has not been followed in detaining a person, or the law is invalid or it infringes a Fundamental Right or the legislature in enacting the law has exceeded its limits. The purpose is not to punish the wrong doer but merely to secure the release of the detent. Some of the situations which are treated as sufficient cause for detention are (i) the law authoring detention is a valid law, (ii) the detention is authorized by law, and (iii) it is in accordance with the procedure prescribed by law. Normally, an application for habeas Corpus can be made by any person on behalf of the prisoner as well as by the prisoner himself. (b) Writs of Mandamus:- Mandamus literally means “we order”.
It is issued in the nature of an order to a subordinate Court or a public corporation to perform its duty properly and redress the grievances of the Individual affected. The purpose of this type of writ is to protect the right of the petitioner and to get some public duty done by the authority to which the writ is issued. It is an order by a superior Court commanding a person or a public authority to do or forbear to do something in the nature of a public duty or in certain cases of a statutory duty. Thus, the writ or order in the nature of a mandamus would be issued when there is a failure to perform mandatory duty. The writ of mandamus cab be granted when there is in the applicant a right to compel the performance of some duty cast upon the authority. The duty sought to be enforced must be a public duty, that is, a duty cast by law. Thus, the writ of mandamus can be issued to a public authority to restrain it from acting under law which has been declared unconstitutional. Mandamus is a command issued by the Court to any person, Court or other body to carry out a public duty imposed upon them either by statute or common law.
It may also be issued to Command an authority to refrain from doing some specific act which that authority is obliged to regain from doing under the law. The most important condition for the grant of mandamus is that there must be a public duty, The obligation of the Government arising out of contract are not public duties and therefore cannot be enforced through a writ a mandamus. The public duty must also be mandatory and not discretionary. But when a discretionary power is granted to the authority and the authority refuses to exercise the power a writ of mandamus may be issued to compel the authority to exercise the power a writ of mandamus may be issued to compel the authority to exercise its discretion. The petitioner seeking mandamus must show his right to compel the government to act in a particular manner. Any failure to prove the right would make mandamus non available to him.
Mandamus is not issued when government is under no duty under the law. It is generally available against government when it denies jurisdiction which it undoubtedly has under the law. It can also be issued to any kind of authority in respect of any type of function administrative, legislative, quasi-judicial, judicial etc.
(c) Writ of prohibition:- A writ of prohibition is an order issued by a State High Court or the Supreme Court to a subordinate Court to stop proceedings in a particular case on the ground of over stepping of jurisdiction or violation of the rules of natural .justice.” In order words, the write is meant to compel the subordinate Courts to keep within the limits of their jurisdiction. This type of write is issued in both the cases where there is excess of jurisdiction and where there is absence of jurisdiction.
The write of prohibition is issued only against judicial or quasi judicial authorities. Hence, prohibition is not available against a public officer who is not vested with judicial functions. Prohibition is issued to prohibit the tribunal from making an ultra virus order or decision.
It follows; therefore, that prohibition is available during the tendency of the proceedings and before the order is made. To conclude that the prohibition is issued when the matter has not been disposed of but is being considered by the body concerned. The function of a prohibition is to prohibit the body from proceeding with the matter further. Generally the following are the grounds on which the writs can be issued (i) Jurisdictional error, (ii) failure of natural justice, (iii) error apparent on the face of record, (iv) findings of fact not supported by evidence, and, (v) when the authority is acting or has acted under an on valid law. (d) Write of certiorari:- A write of certiorari is an offer for the removal of a suit an inferior Court to a Superior Court in the interest of speedy justice and also because the inferior Court may not be competent to deal with that matter. It is issued by the Supreme Court and High court to an inferior Court or body exercising judicial or quasi-judicial functions to remove a sit from such inferior Court of body and adjudicate upon the validity of the proceeding or body exercising judical or quasi-judicial functions. It may be used before the trail to prevent an excess or abuse of jurisdiction and to remove the case for trail to a higher Court.
It is invoked also after trial to quash an order which has been made without jurisdiction or in violation of the rules of natural justice. The writ of certiorari is issued on the following grounds, to a judicial or quasi-judicial body (i) Where there is error on the face of the record but not error of a fact, (ii) When there is excess or want of jurisdiction, and (iii) When there is violation of procedure or disregard of principle of natural justice. While prohibition is available at an earlier State, certiorari is available at a later stage, on similar grounds. The object of both is to secure that the jurisdiction of an inferior Court or tribunal is properly exercised and that it does not usurp the jurisdiction which it does not posses. The condition necessary for the issue of the write of certiorari are (i) There should be a tribunal or officer having legal authority to determine questions affecting rights of subjects and having a duty to act judicially, and (ii) Such tribunal or officer must have acted without jurisdiction or in the legal authority vested in such quasi-judicial authority, or in Contravention if the rules of natural justice or there is an error apparent on the face of its record.
(e) Writ of Quo Warranto:- A writ of Quo Warranto is issued to restrain a person from holding an office to which he is not entitled and may declare such a post vacant. Such a writ is issued in respect of offices of public nature and not against private institutions. The word ‘Quo Warranto’ means what is your authority. By this writ a holder of an office is called upon to show to the court under what authority he holds the office. The object of the writ of quo warranto is to prevent a person to hold an office which he is not legally entitled to hold.
A writ of quo warranto can be claimed by a person if he satisfied the Court that, (i) The office in question is a public office, (ii) It is held by a person without legal authority. Further this writ is used by judiciary to control the executive action in the matter of making appointments to public office under relevant statutory provisions. This writ is a also used to protect a citizen from the holder of a public, is unable to explain under what authority he is holding the office, the Court may restrain him from acting in the office and may also declare the office to be vacant. But this writ is not available against a private office. A person who occupies a substantive public office without legal authority is asked to show by what right he occupies that office. The purpose of this writ is to remove persons who are not legally qualified or competent from substantive public offices.
Any member of the public can seek a writ of quo warrnato even though he is not personally aggrieved or interested in the matter.