Supreme Court of India: Establishment, Constitution and Jurisdiction

Establishment of Supreme Court

According to Art. 124 (1) of the Constitution the Supreme Court of India as the heighest court of the land was established on 26th Jan., 1950 in New Delhi. The position of the Supreme Court with reference to its powers, appellate jurisdiction and as a guardian of the Constitution is similar to the Federal Court of India established by the Act of 1935. It is observed in the Report of the Joint Parliamentary Committee of Indian Reforms, Vol. I, Part I that “a Federal Court is an essential element in a Federal Constitution. It is at once the interpreter and guardian of he Constitution and the tribunal for the determination of dispute between the constituent units of the Federation.” The Supreme Court of India exercises original and exclusive jurisdiction to determine, the justiciable disputes between the Union and the State or States; or between the States inter se. The Supreme Court is, now, the final appellate tribunal of India. While acting as a guardian of the Constitution, the Supreme Court can declare Executive acts unconstitutional. The Court has the power to declare invalid any enactment which transgresses fundamental rights or is contrary to some other constitutional provisions.

Constitution of the Supreme Court

The Supreme Court consists of a Chief Justice and seven other Judges. The Parliament may by law, increase the number of Judges. Now the number of judges in the Supreme Court has gone upto 26 including the Chief Justice of India. Under this power the President has now increased the number of judges to 26 including the Chief Justice. Every Judge of the Supreme Court is appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Court Judges as he may deem necessary.

A Judge is to hold office upto sixty-five years of age. A Judge of the Supreme Court must have been for at least five years a Judge of a High Court, or an advocate of at least ten years’ standing or, is in the opinion of the President, a distinguished jurist. A Judge of the Supreme Court must be a citizen of India. He can be removed from his office only on the ground of proved misbehaviour or incapacity and by an order of the President passed after an address by each House of Parliament.

Jurisdiction of the Supreme Court

Supreme Court has the following types of jurisdiction-

1. Original Jurisdiction – According to Art. 131 of the Constitution the Supreme Court has an exclusive jurisdiction in cases arising between (a) the Centre and the constituent States, i.e., the Union and one or more States or (b) the Union and any State or States on one side and one or more States on the other side, or (c) two or more States, provided the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. The Supreme Court shall have no original jurisdiction over cases involving ambassador and public ministers or treaties nor will entertain suits to which citizens are a party, Basu observes that, “it is not a Court of ordinary original jurisdiction in all matters and between all parties.”
Art. 32 of Constitution confers original jurisdiction on the Supreme Court to enforce fundamental rights even though petitioners in such cases are individuals. Under Art. 32 a person can directly go to the Supreme Court for the enforcement of his fundamental rights. Thus, Supreme Court is the protector’ and guardian of the People’s fundamental rights.

2. Appellate Civil Jurisdiction – According to Art. 132 of the Constitution – (a) An appeal lies to the Supreme Court from any judgment, decree or final order of a High Court whether in a civil (or criminal) or other proceeding if the High Court certifies that the case involves a substantial question as to the interpretation of the Constitution. (b) If the High Court refuses to grant such a certificate the Supreme Court itself may grant special leave to appeal if it is satisfied that a substantial question of law as to the interpretation of the Constitution is involved. (c) Appeal lies to the Supreme Court from any, judgment, decree, or final order of a High Court, in a civil proceeding, if the High Court certifies that the value of the subject-matter involved in the dispute is not less than twenty thousand rupees; and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below, if the High Court further certifies that the appeal involves some substantial question of law. (d) In cases where the conditions in (c) above are not fulfilled, the appeal lies, if the High Court certifies that the case is a fit one for appeal to the Supreme Court.

3. Criminal Jurisdiction of the Supreme Court-An appeal in criminal cases lies to the Supreme Court from a High Court, if the latter –

(i) Has in appeal, reversed an order of acquittal and sentenced the accused to death;

(ii) Has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused and sentenced him to death; or

(iii) certifies that the case is a fit one for appeal to the Supreme Court.

4. Provision of “special leave to appeal” – Art. 136 (i) confers a discretion on the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence or order “in any cause or matter passed or made by any Court or tribunal in the territory of India.” The Supreme Court thus enjoys much wider powers in relation to appeal than what the Privy Council used to enjoy.

5. Advisory Jurisdiction – Under Art. 143 the President is empowered to obtain the opinion of the Supreme Court on any question of law or fact which is of public importance. Under Art. 143 (2) if the President refers to the Supreme Court matters which are excluded from its jurisdiction under the proviso to Art. 131 the Court shall be bound to give its opinion thereon.

6. Federal Court’s Jurisdiction – Art. 135 of Indian Constitution provides that the Supreme Court shall exercise the jurisdiction of the Federal Court (established under the Government of India Act, 1935) in respect of the cases not covered by Art. 133 and 134.

7. A Court of Record – According to Art. 129, the Supreme Court is also a Court of Record as such has power to punish for its contempt.

8. Law declared by the Supreme Court -The law declared by the Supreme Court shall be binding on all the courts subordinate thereto. It was observed in Kishori Lal V. Debi Prasad, [A.I.R. 1950 Pat. 50 (61) (F.B.)]’that “It is the ratio decidendi of a Supreme Court judgment which is absolutely binding on all subordinate courts. Obiter dicta, though entitled to great respect, is not absolutely binding.” The Supreme Court is not bound by its own decision and may reverse a previous decision specially on constitutional question, but the Court will surely be  slow to do so unless such previous decision appears to be obviously

9. Power to Review the Previous decisions – Under Art. 137 the Supreme Court has power to review its judgment or order on one or more of the following three grounds — (i) discovery of new and important matter of evidence, (ii) mistake or error apparent on the face of the record, and (iii) any other sufficient reason.

10. Power to issue writs – According to Art. 32 (1) of the Constitution, the Supreme Court is empowered to issue directions, orders or writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of the fundamental rights. The power of issuing writs etc. is subject to regulation by Parliament.

11. Ancillary Powers – Parliament may by law, confer such supplementary powers on the Supreme Court as may appear. necessary or desirable to enable the court to exercise effectively the jurisdiction conferred upon it by the Constitution. S. 527 of the Code of Criminal Procedure empowers the Supreme Court to transfer a criminal case or appeal from one High Court to another, “whenever it is made to appear to the Supreme Court that an order under this section is expedient in the ends of justice.” But such supplementary powers should not be inconsistent with any of the provisions of the Constitution.

How Supreme Court of India incorporated the jurisdiction of the Privy Council and Federal Court ?

With the achievement of Independence, it would have been highly anomalous to maintain the system of appeals to the Privy Council, otherwise it would have appeared to diminish the full independence of India. It was therefore inevitable that an Independent India should abolish appeals to the Privy Council,and create, instead, a national court of its own as the ultimate appellate court from the High Courts. This happened on January 26, 1950, when the Supreme Court of India came into existence under the new Constitution. But during the interim period from 1947 to 1950, following preliminary steps had to be taken with a view to eventual abolition of appeals to the Privy Council.

(i) The first step in this direction was taken by the Central Legislature in 1948 when it enacted the Federal Court Act. I of 1948 to provide for the enlargement of the appellate jurisdiction of the Federal Court so as to embrace civil appeals from the High Courts and, correspondingly, to restrict and direct appeals to the Privy Council.

The Act of 1948 did not completely abolish appeals to the Privy Council. It did not touch appeals in criminal cases. Appeals to the Privy Council in civil or constitutional cases were still possible by leave of the Federal Court or of the King-in-Council. This Act, therefore did not completely sever India’s ties with the Privy Council.

(ii) Since the Constitution of India was due to come into force on January 26, 1950, hence it was felt that steps should be taken to abolish the Privy Council’s jurisdiction well before the crucial date. Again it was felt that the Privy Council should not have jurisdiction even to deal with and dispose of appeals and petitions which might remain pending before it on that date. That is why Indian Constituent Assembly passed the Abolition of Privy Council Jurisdiction Act on the 24th September, 1949, to abolish the jurisdiction of the Privy Council in respect of appeals from India and also to provide for pending appeals so that there might be minimum trouble and inconvenience at the date of the commencement of the new Constitution, and the process of transition might be smoothened.

The Act came into force on the 10th October, 1949. From that date, as an interim measure, the Federal Court was to be invested with the same jurisdiction to entertain and dispose of appeals and petition from the judgments, decrees or orders of the High Courts as the King-in-Council had at the time. The Act abolished the jurisdiction of His Majesty-in-Council to entertain appeals and petitions from any judgment, decree or order of any court or tribunal in India, including appeals and petitions in criminal matters, whether the “Privy Council exercised such jurisdiction by virtue of the royal prerogative or otherwise. All pending appeals, excepting those which the Privy Council could dispose of before the inauguration of the new Constitution, were to stand transferred to the Federal Court. The last appeal from India was disposed of by the Privy Council on December 15, 1949, and with this came to an end India’s 200 year old connection with the Privy Council.

On January 26, 1950, the Federal Court gave way to the Supreme Court under the new Constitution, and thus began an exciting new era in Indian Legal History. The Supreme Court was inaugurated on January 28, 1950 and is regarded as the highest court in the land. Thus, the existing Supreme Court assumed the jurisdiction both of the Privy Council as well as that of Federal Court.



Q.:- How Supreme Court of India incorporated the jurisdiction of the Privy Council and the Federal Court ? Illustrate.

Q.:- Explain in brief the establishment, constitution and jurisdiction of Supreme Court of India.


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