In a federation where there are dual polity, distribution of powers between the Centre and the Units and dual Government controlling the activities of the citizens, a Federal Court appears to be an essential element.
Such a Court is necessary to interpret federal laws and compel obedience to them and more particularly to interpret the Federal Constitutions.
ADVERTISEMENTS:
As Alexander Hamilton rightly said in “The Federalist”, “Laws are a dead letter without Courts to expound and to define their true meaning and operation” and thus an impartial and independent Judiciary is indispensable in a democratic country.
Like other federal systems, the Constitution of India created an independent Judiciary to act as the guardian of the Constitution and provides a single and integrated system of Judiciary throughout the country. The Court system in India is organised in hierarchical manner.
Image Source: zone1.aqusagtechnologi.netdna-cdn.com
The Supreme Court of India stands at the apex of the whole Judicial System in bringing about unity in it. In contrast, there is dual judiciary in the federation of the U.S.A. where each Unit has a Supreme Court in addition to the Federal Supreme Court at the Centre.
In order to maintain unity of the country and uniformity in law, the makers of the Constitution have provided a single integrated Judicial System for India.
ADVERTISEMENTS:
They brought to the framing of the judicial provisions of the Constitution an idealism that was expounded in the Preamble of the Constitution. They expected the Judiciary to be “an arm of the social revolution, upholding the equality that Indians had longed for during colonial days but had not gained- not simply because the regime was colonial and perforce repressive, but largely because the British had feared that social change would endanger their rule”.
The Judiciary in India is separated from the Executive and Legislature. The Constituent Assembly laid down rigid qualifications for the appointment of Judges and their service conditions are made permanent which cannot be changed to their disadvantages during their tenure. It wanted to keep the Judiciary out of politics.
An independent and impartial Judiciary will be the best safeguard of a democratic process.
Composition of the Supreme Court of India
The Supreme Court of India was inaugurated on the 26th January, 1950. The Constitution originally provided for a Supreme Court with Chief Justice and seven other Judges. However, it empowered the Parliament to change the number of Judges.
ADVERTISEMENTS:
By the Supreme Court (Number of Judges) Act, 1987, as amendment from time to time, the Parliament had prescribed that the maximum number of Judges of the Supreme Court to be 26. At present the Supreme Court consists of 26 Judges (including the Chief Justice of India). Justice V.N. Khare is now acting as the Chief Justice of India.
Further, the Constitution provides that at least 5 Judges will decide cases of constitutional importance or involving substantial questions of Law. While in all such cases majority decision prevails, the dissenting Judge or Judges are allowed to give a note of dissent.
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 of the High
Courts in the States as the President may deem necessary for the purpose. A Judge of the Supreme Court holds office until he attains the age of 65 years (Article 124 of the Constitution).
While appointing the Judges of the Supreme Court other than the Chief Justice, Consultation of the Chief Justice by the President is obligatory. This consultation is made obligatory in order to avoid the political pressure put by the Council of Ministers on the President.
In the United States of America, on the contrary, the appointments of the Judges of the Supreme Court are made by the President only with the concurrence of the Senate but the provision of consultation of the Chief Justice in case of the appointment of Judges is a superb one in the Indian Constitution.
On this issue Dr. B. R. Ambedkar explained in the Constituent Assembly that “it does not make the President absolute authority in the matter of making appointments. It does not also permit the influence of the legislature. The provision in the Article is that there should be consultation of persons who are ex hypothesis qualified to give proper advice in the matters of this sort”.
Qualifications and Tenure of Judges:
The elimination of politics in the appointment of Judges is further prohibited by prescribing high qualifications that are necessary in order to be appointed as Judges in the Supreme Court.
This is also intended to enhance the competency and prestige of the Supreme Court as the highest Court in the land.
Any citizen of India can be appointed as a Judge if he possesses one of the following qualifications:
(a) He must have been for at least 5 years a Judge of a High Court, or
(b) He must have been an Advocate for at least 10 years, or
(c) He must be in the opinion of the President a distinguished Jurist.
These rigid qualifications help the President to appoint juristic persons of scholarly habit and eminence with legal experience as the Judges. A distinguished jurist who does not have the experience of legal practice but who possesses sound knowledge in law or holds a Chair of Professor of Law in any University can be qualified for appointment as a Judge of the Supreme Court.
A Judge of the Supreme Court now draws a salary of 30,000 per month while the Chief Justice of the Supreme Court is entitled to a salary of Rs. 33,000 per month. In addition to this, every Judge is entitled to a free house and certain other allowances and privileges. Elaborate provisions have been made regarding leave, allowances, pensions and facilities for medical treatment of the Judges.
Salaries and the allowances of the Judges, being a charged item on the Consolidated Fund of India, are not votable in the Parliament. They cannot be altered during the tenure of the Judges to their disadvantage.
There is, however, one exception to this. They can be reduced by law of the Parliament during the financial emergency. In order to secure independence of the Judiciary, the Supreme Court is authorised to have its own establishments.
All appointments of the Officers and servants of the Supreme Court are made by the Chief Justice or any other Judge or Officer whom the Chief Justice may direct for the purpose. The Supreme Court regulates the conditions of service of such officers and servants and their salaries and expenses are also charged from the Consolidated Fund of India. The Supreme Court normally sits in Delhi, but it may sit in other place or places of India as the Chief Justice may from time to time fix with the approval of the President.
Removal of Judges:
A Judge of the Supreme Court remains in office till he attains the age of 65. He may resign earlier or he can be removed from his office only on the ground of proved mis-behaviour or ‘”capacity.
The Parliament is empowered to impeach or remove a Judge. The procedure is that in each House a resolution for the impeachment of a Judge should be passed with the support of a Majority of total membership of the House which should include less than Two-thirds of the members of the House present and voting.
Such a resolution will be addressed to the President who then passes the order for the removal of the Judge. Thus the President has no arbitrary power to remove a Judge.
The procedure of impeachment of a Judge is a strict and rigid one and it helps to ensure the independence and impartiality of the Supreme Court. Further, the independence of the Supreme Court is safeguarded by prohibiting the Judges to practise after their retirement.
There is, however, no constitutional restriction against a retired Judge being appointed for a specialised work of either Central or State Government. Mr. H. Khanna, a retired Judge, was appointed by the Orissa Government to examine the charges against the Congress Ministry of 1961-67 and submit his report thereof. The Janata Government, at the Centre, has appointed Justice Shah in 1977 to decide charges against Mrs. Gandhi.