INDEPENDENCE OF SUPREME

COURT
The Supreme Court has been assigned a very
significant role in the Indian democratic
political system. It is a federal court, the
highest court of appeal, the guarantor of the
fundamental rights of the citizens and
guardian of the Constitution.
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 (council of
ministers) and the Legislature (Parliament).
It should be allowed to do justice without
fear or favour.
 1. Mode of Appointment
The judges of the Supreme Court are appointed by
the President (which means the cabinet) in
consultation with the members of the judiciary itself
(ie, judges of the Supreme Court and the high
courts).

This provision curtails the absolute discretion of the

executive as well as ensures that the judicial
appointments are not based on any political or
practical considerations.
 2. Security of Tenure
The judges of the Supreme Court are provided with the
Security of Tenure. They can be removed from office by
the President only in the manner and on the grounds
mentioned in the Constitution.

This means that they do not hold their office during the
pleasure of the President, though they are appointed by
him. This is obvious from the fact that no judge of the
Supreme Court has been removed (or impeached) so
far
 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 the
Parliament.

They cannot be changed to their disadvantage

after their appointment except during a
financial emergency.
Thus,the conditions of service of the judges of
the Supreme Court remain same during their
term of Office.
4. Expenses Charged on Consolidated Fund

The salaries, allowances and pensions of the judges and the staff as well as all
the administrative expenses of the Supreme Court are charged on the
Consolidated Fund of India. Thus, they are non-votable by the Parliament
(though they can be discussed by it).

5. Conduct of Judges cannot be Discussed The Constitution prohibits any

discussion in Parliament or in a State Legislature with respect to the conduct of
the judges of the Supreme Court in the discharge of their duties, except when
an impeachment motion is under consideration of the Parliament.

6. Ban on Practice after Retirement The retired judges of the Supreme Court are
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.
7. Power to Punish for its Contempt The Supreme Court can punish
any person for its contempt. Thus, its actions and decisions cannot
be criticised and opposed by any body. This power is vested in the
Supreme Court to maintain its authority, dignity and honour.

8. 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. He can also prescribe their
conditions of service.

9. Its Jurisdiction cannot be Curtailed The Parliament is not

authorised to curtail the jurisdiction and powers of the Supreme
Court. The Constitution has guaranteed to the Supreme Court,
jurisdiction of various kinds. However, the Parliament can extend the
same
10. Separation from Executive
The Constitution directs the State to take
steps to separate the Judiciary from the
Executive in the public services. This means
that the executive authorities should not
possess the judicial powers.

Consequently, upon its implementation, the

role of executive authorities in judicial
administration came to an end.
JURISDICTION AND POWERS
OF SUPREME COURT
The Constitution has conferred a very extensive jurisdiction and
vast powers on the Supreme Court. It is not only a Federal Court
like the American Supreme Court but also a final court of appeal.

The jurisdiction and powers of the Supreme Court can be

classified into the following:
1. Original Jurisdiction.
2. Writ Jurisdiction.
3. Appellate Jurisdiction.
4. Advisory Jurisdiction.
5. A Court of Record.
6. Power of Judicial Review.
7. Constitutional Interpretation
8. Other Powers.
 1. Original Jurisdiction
As a federal court, the Supreme Court decides the
disputes between different units of the Indian Federation.
More elaborately, any dispute:
(a)Between the Centre and one or more states; or
(b)(b) Between the Centre and any state or states on one
side and one or more other states on the other side; or
(c) Between two or more states. In the above federal
disputes, the Supreme Court has exclusive original
jurisdiction.

Exclusive means, no other court can decide such disputes

and original means, the power to hear such disputes in
the first instance, not by way of appeal.
Further, this jurisdiction of the Supreme Court does not extend to the
following:
(a)A dispute arising out of any pre-Constitution treaty, agreement, covenant,
engagement, sanad or other similar instrument.
(b)A dispute arising out of any treaty, agreement, etc., which specifically
provides that the said jurisdiction does not extent to such a dispute.
(c) Inter-state water disputes.
(d) Matters referred to the Finance Commission.
(e)Adjustment of certain expenses and pensions between the Centre and the
states.
(f) Ordinary dispute of Commercial nature between the Centre and the states.
(g)Recovery of damages by a state against the Centre.

In 1961, the first suit, under the original jurisdiction of the Supreme Court, was
brought by West Bengal against the Centre. The State Government challenged
the Constitutional validity of the Coal Bearing Areas (Acquisition and
Development) Act, 1957, passed by the Parliament. However, the Supreme
Court dismissed the suit by upholding the validity of the Act.
2. Writ Jurisdiction

The Constitution has constituted the Supreme Court as the guarantor and
defender of the fundamental rights of the citizens. The Supreme Court is
empowered to issue writs including habeas corpus, mandamus,
prohibition, quo warranto and certiorari for the enforcement of the
fundamental rights of an aggrieved citizen. In this regard, the Supreme
Court has original jurisdiction in the sense that an aggrieved citizen can
directly go to the Supreme Court, not necessarily by way of appeal.
However, the writ jurisdiction of the Supreme Court is not exclusive.

The high courts are also empowered to issue writs for the enforcement of
the Fundamental Rights. It means, when the Fundamental Rights of a
citizen are violated, the aggrieved party has the option of moving either
the high court or the Supreme Court directly.
Therefore, the original jurisdiction of the Supreme Court with regard to federal
disputes is different from its original jurisdiction with regard to disputes relating
to fundamental rights.
In the first case, it is exclusive and in the second case, it is concurrent with high
courts jurisdiction. Moreover, the parties involved in the first case are units of
the federation (Centre and states) while the dispute in the second case is
between a citizen and the Government (Central or state).

There is also a difference between the writ jurisdiction of the Supreme Court
and that of the high court. The Supreme Court can issue writs only for the
enforcement of the Fundamental Rights and not for other purposes. The high
court, on the other hand, can issue writs not only for the enforcement of the
fundamental rights but also for other purposes.

It means that the writ jurisdiction of the high court is wider than that of the
Supreme Court. But, the Parliament can confer on the Supreme Court, the
power to issue writs for other purposes also.
3. Appellate Jurisdiction
As mentioned earlier, the Supreme Court has not only succeeded the
Federal Court of India but also replaced the British Privy Council as
the highest court of appeal. The Supreme Court is primarily a court
of appeal and hears appeals against the judgements of the lower
courts.

It enjoys a wide appellate jurisdiction which can be classified under

four heads:

(a)Appeals in constitutional matters.

(b)Appeals in civil matters.
(c)Appeals in criminal matters.
(d)Appeals by special leave.
(a)Constitutional Matters In the constitutional cases, an appeal can
be made to the Supreme Court against the judgement of a high
court if the high court certifies that the case involves a
substantial question of lawthat requires the interpretation of the
Constitution. Based on the certificate, the party in the case can
appeal to the Supreme Court on the ground that the question
has been wrongly decided.

(b)Civil Matters In civil cases, an appeal lies to the Supreme Court

from any judgement of a high court if the high court certifies–
(i) that the case involves a substantial question of law of general
importance; and
(ii) that the question needs to be decided by the Supreme Court.
(c) Criminal Matters
The Supreme Court hears appeals against the judgement in a
criminal proceeding of a high court if the high court–
(i) has on appeal reversed an order of acquittal of an accused
person and sentenced him to death; or
(ii)has taken before itself any case from any subordinate court
and convicted the accused person and sentenced him to
death; or
(iii)( certifies that the case is a fit one for appeal to the Supreme
Court. In the first two cases, an appeal lies to the Supreme
Court as a matter of right (ie, without any certificate of the
high court). But if the high court has reversed the order of
conviction and has ordered the acquittal of the accused, there
is no right to appeal to the Supreme Court.
(d) Appeal by Special Leave
The Supreme Court is authorised to grant in its discretion special leave to appeal
from any judgement in any matter passed by any court or tribunal in the country
(except military tribunal and court martial). This provision contains the four
aspects as under:
(i) It is a discretionary power and hence, cannot be claimed as a matter of right.
(ii) (ii) It can be granted in any judgement whether final or interlocutory.
(iii)(iii) It may be related to any matter–constitutional, civil, criminal, income-tax,
labour, revenue, advocates, etc.
(iv)(iv) It can be granted against any court or tribunal and not necessarily against a
high court (of course, except a military court).

(v) Thus, the scope of this provision is very wide and it vests the Supreme Court with
a plenary jurisdiction to hear appeals. On the exercise of this power, the Supreme
Court itself held that ‘being an exceptional and overriding power, it has to be
exercised sparingly and with caution and only in special extraordinary situations.
4. Advisory Jurisdiction
The Constitution (Article 143) authorises the president
to seek the opinion of the Supreme Court in the two
categories of matters:
(a) On any question of law or fact of public importance
which has arisen or which is likely to arise.
(b) On any dispute arising out of any pre-constitution
treaty, agreement, covenant, engagement, or other
similar instruments.
In the first case, the Supreme Court may tender or may
refuse to tender its opinion to the president.
But, in the second case, the Supreme Court ‘must’
tender its opinion to the president. In both the cases,
the opinion expressed by the Supreme Court is only
advisory and not a judicial pronouncement. Hence, it is
not binding on the president; he may follow or may
not follow the opinion. However, it facilitates the
government to have an authoritative legal opinion on
5. A Court of Record
As a Court of Record, the Supreme Court has two powers:
(a)The judgements, proceedings and acts of the Supreme Court
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 legal references.

(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 ₹2,000 or with both. In 1991, the Supreme Court has
ruled that it has power to punish for contempt not only of
itself but also of high courts, subordinate courts and tribunals
functioning in the entire country.
Contempt of court may be civil or criminal. Civil contempt means wilful
disobedience to any judgement, order, writ or other process of a court
or wilful breach of an undertaking given to a court. Criminal contempt
means the publication of any matter or doing an act which–
(i) scandalises or lowers the authority of a court; or
(ii) (ii) prejudices or interferes with the due course of a judicial
proceeding; or
(iii)(iii) interferes or obstructs the administration of justice in any other
manner.

However, innocent publication and distribution of some matter, fair and

accurate report of judicial proceedings, fair and reasonable criticism of
judicial acts and comment on the administrative side of the judiciary do
not amount to contempt of court.
6. Power of Judicial Review
Judicial review is the power of the
Supreme Court to examine the
constitutionality of legislative
enactments and executive orders of
both the Central and state
governments.
On examination, if they are found to be
violative of the Constitution (ultra-
vires), they can be declared as illegal,
unconstitutional and invalid (null and
void) by the Supreme Court.
Consequently, they cannot be enforced
by the Government.
7. Constitutional Interpretation
The Supreme Court is the ultimate interpreter of the Constitution. It
can give final version to the spirit and content ofthe provisions of the
constitution and the verbiage used in the constitution. While
interpreting the constitution, the Supreme Court is guided by a
number of doctrines.
In other words, the Supreme Court applies various doctrines in
interpreting the constitution. The important doctrines are mentioned
below:
1. Doctrine of Severability
2. Doctrine of Waiver
3. Doctrine of Eclipse
4. Doctrine of Territorial Nexus
5. Doctrine of Pith and Substance
6. Doctrine of Colourable Legislation
7. Doctrine of Implied Powers
8. Doctrine of Precedent
9. Doctrine of Occupied Field
10. Doctrine of Prospective Overruling
8. Other Powers
Besides the above, the Supreme Court has numerous other
powers:
(a)It decides the disputes regarding the election of the president
and the vicepresident. In this regard, it has the original,
exclusive and final authority.
(b)It enquires into the conduct and behaviour of the chairman
and members of the Union Public Service Commission on a
reference made by the president. If it finds them guilty of
misbehaviour, it can recommend to the president for their
removal. The advice tendered by the Supreme Court in this
regard is binding on the President.
(c) It has power to review its own judgement or order. Thus, it is
not bound by its previous decision and can depart from it in
the interest of justice or community welfare. In brief, the
Supreme Court is a self-correcting agency. For example, in the
Kesavananda Bharati case (1973), the Supreme Court departed
from its previous judgement in the Golak Nath case (1967).
(d)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.

(e)Its law is binding on all courts in India. Its decree or

order is enforceable throughout the country. All
authorities (civil and judicial) in the country should act in
aid of the Supreme Court.

(f)It has power of judicial superintendence and control

over all the courts and tribunals functioning in the entire
territory of the country. The Supreme Court’s jurisdiction
and powers with respect to matters in the Union list can
be enlarged by the Parliament. Further, its jurisdiction
and powers with respect to other matters can be
enlarged by a special agreement of the Centre and the
states