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To be appointed as a judge of the supreme court, a person must be a citizen of India and
a) has been a Judge of a High Court for 5 yrs .
b) has been an advocate of a High Court for 10 yrs.
c) in the opinion of the president, a distinguished Jurist.
Until 1973, the senior most judge of the supreme court was appointed as the Chief Justice. However,
this convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior
judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded
that the word "consult" does not mean that the president is bound by the advise. He is free to make
his own decision.
In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer of a
Judge from one high court to another under art 222, SC held that the President has the right to differ
from the advice provided by the consultants.
As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC and
High Courts are fairly free from executive control. This is an important factor that ensure the
independence of the judiciary.
The following are other provisions that work towards the same goal:
1. Fixed Tenure
A SC Judge has a fixed tenure until retirement age. He cannot be removed except by a presidential
order passed with a simple majority as well as by 2/3 majority of each house of the parliament
present and voting.
No judge has ever been removed by a presidential order in India. The proceedings to remove were
started to Justice V Ramaswamy, but the motion was not approved because lack of required
majority.
In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995, pressure was put the the local bar
association on the judge to resign. In this case, the SC held that only the Chief Justice of the SC can
be the prime mover of the action against erring judges. Thus, after this case, action against judges
was allowed only through in-house procedures of the judiciary.
2. Salary
The salary of the judges cannot be changed after the appointment for their disadvantage.
4. Art 121
No discussion about the judges in the parliament is permitted as per art 121 except for the discussion
about his removal.
Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must involves
a question of law or fact on which a legal right depends. Further, the suit cannot be because of any
commercial relation or political relation between the two parties.
In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by State of
Karnataka against the Govt. regarding its objection to the appointment of an inquiry commission is
maintainable.
In the case of Union of India vs State of Rajasthan 1984, it was held that a suit to recover damages
under Railway Act is not maintainable. SC's original jurisdiction is not attracted for ordinary
commercial disputes.
The following are some exceptions under which SC does not have jurisdiction:
1. Any treaty, covenant, sanad, agreement, or any such instrument that was executed before the
commencement of the constitution, and which is still in operation or provides that the jurisdiction
of SC does not extend to such a dispute.
2. The parliament by law may restriction the jurisdiction of SC in disputes related to use, distribution,
or control of the water or an interstate river or river valley.
3. Any matter referred to the Financial Commission.
4. Matters related to the adjustment of the expenses between the center and the state.
Madan Gopal vs State of Orrisa 1956 - The pecuniary value of a dispute is immaterial. There may
be matters which cannot be measured in money but the decision could have a far reaching effect and
such cases can be permitted to be appealed in SC.
2. With Certificate
If the High Court certifies that this is a fit case for appeal to SC.
Siddheshwar Ganguly vs State of WB 1958 - In this case SC issued guidelines for issuing
certificated under 134A. A mere question of fact is not enough but it must also involve a substantial
question of law.
Art 135 Federal Court's (the one that existed before the commencement of the constitution)
jurisdiction to be exercised by the SC.
Art 139 A
Under this article the SC has the power to withdraw before itself any case or cases from High Courts
if it feels that these cases involves the same or similar question of law that is of general importance.
Union of India vs SGPC 1986 - SC may transfer a case from one High Court to another under art
136 if it feels that the case cannot be dealt with fairly in one High Court due to exceptional
circumstances.
In re Kerala Education Bill 1953, SC has interpreted the word "may" in clause 1 as it is not bound to
give its opinion. If it has a good reason, it may refuse to express its opinion.
In re Special Courts Bill 1979 case, SC has held that opinions given by it under this jurisdiction are
binding on all courts in the country.
In re Cauvery Disputes Tribunal 1992, SC declared that the ordinance passed by the State of
Karnataka to not follow the order of the tribunal to release water to TN, is unconstitutional.
In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused to express
its opinion on whether a temple existed on the disputed location because it was superfluous,
unnecessary, and favors a particular religion.
Art 141
Judgement of the SC is binding on all courts, except itself. In the case of Bengal Immunity Co vs
State of Bihar. 1955, SC held that the principle of Stare decisis is not an inflexible rule of law and
cannot be used to perpetuate errors.
Natural Justice
Natural Justice is not exclusively the principle of administrative law. The courts are also bound by the
same principle. Every administrative action must be supported by reasons. The reasons must be
recorded to ensure that there is no arbitrariness.
Judicial Review
The concept of Judicial Review started from the case of Marbury vs Madison in 1800 in the USA. In
this case, justice John Marshall held that judiciary has inherent power to review actions by legislature
even if no explicit provision is given in the constitution.
Indian Situation
By adopting a written constitution and an independent judiciary, India has provided the rule of law
instead of rule on men to the citizens. However, the rule of law will be rendered useless if the
legislature is able to make laws that violate the fundamental rights of the citizen. Thus, the constitution
in Art 13 has provided the judiciary with the power to review laws made by the legislature. This is
called Judicial Review.
Art 13 says:
1. All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention,
be void.
3. In this article, unless the context otherwise requires,—
o (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law;
o “laws in force” includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and
not previously repealed, notwithstanding that any such law or any part thereof may
not be then in operation either at all or in particular areas.
4. Nothing in this article shall apply to any amendment of this Constitution made under article
368.
In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that the power vested in SC
by art 32 and High Court by art 226 over legislative action is a basic feature.
Doctrine of Severability
AK Gopalan vs State of Madras SC AIR 1950 : Only section 14 of Preventive detention act is void
and not the whole act.
Doctrine of Eclipse
Bhikaji vs State of MP SC AIR 1955: Applies to pre-constitutional law
Deep Chand vs State of UP SC AIR 1959: Does not apply to post - constitutional law.
State of Gujrat vs Ambika Mills SC AIR 1974 : Applies to post constitutional law for non-citizens.
Dulare Lodh vs 3rd additional district judge SC AIR 1984: Applies to post constitutional law as
well.
Doctrine of Waiver
Basheshar Nath vs Income tax commissioner SC AIR 1959 : Citizen cannot waive right.
Meaning of Law
Keshavanand Bharati vs State of Kerala SC AIR 1973: Rules and regulations made
under legislative power and not amendments.