Ashna Sisodia is teaching live on Unacademy Plus
Course: The Union ( Part V) Lesson: Supreme Court Presented by : Ashna Sisodia
About Me From Chandigarh, India Done computer science engineering from UIET kurukshetra-2012 pass out UPSC CSE mains qualified Keen learner and loves to teach Interests: Loves reading and blogging Rate, Review and Recommend Follow me : https://unacademy.in/user/AshnaSisodia
Introduction An integrated judicial system with the Supreme Court at the top and the high courts below it . Under a high court (and below the state level), there is a hierarchy of subordinate courts, that is, district courts and other lower courts. . Although a federal country like the USA, has a unified judiciary and one system of fundamental law and justice. This single system of courts, adopted from the Government of India Act of 1935, enforces both Central laws as well as the state laws. In USA, on the other hand, the federal laws are enforced by the federal judiciary and the state laws are enforced by the state judiciary. There is thus a double system of courts in USA-one for the centre and the other for the states.
The Union Judiciary The Supreme Court of India was inaugurated on January 28, 1950 It succeeded the Federal Court of India, established under the Government of India Act of 1935 . However, the jurisdiction of the Supreme Court is greater than that of its predecessor. This is because, the Supreme Court has replaced the British Privy Council as the highest court of appeal. Articles 124 to 147 in Part V of the Constitution deal with the organisation, independence, jurisdiction, powers, procedures and so on of the Supreme Court. The Parliament is also authorised to regulate them.
The Union Judiciary: Constitutional Provisions Article 124: Establishment and constitution of Supreme Court . (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. (2) Every Judge of the Supreme Court shall be 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 and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
Qualifications of Judges . A person to be appointed as a judge of the Supreme Court should have . 1. He should be a citizen of India. . 2. (a) He should have been a judge of a High Court (or high courts in . or (b) He should have been an advocate of a High Court (or High Courts the following qualifications: succession) for five years; in succession) for ten years; or (c) He should be a distinguished jurist in the opinion of the president. From the above, it is clear that the Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court.
Appointment of Chief Justice of India The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary. In other words, he may consult some college of judges. Before 1973, seniority was the criteria. This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges. At present, the Supreme Court consists of thirty-one judges (one chief justice and thirty other judges).
Appointment of Other Judges of SC: The judges of the Supreme Court are appointed by the president. . The President shall take the advice from the chief justice of India. . The Prez. May take the consultation of the college of judges . Before 1973, others judges were appointed on the consultation of . The consultation with the chief justice is obligatory in the case of Supreme Court and the high courts as he deems necessary. CJI appointment of a judge other than Chief justice.
Controversy over Consultation Is Seniority the only Principle? Can Merit be the possible principle? . If Yes, Then how merit will be determined? . Can merit be determined only by taking the consultation from college of judges? . And If it is compulsory to take the advice from the college of judges, Then will that consultation means concurrence or it will mean only consultation?
Controversy over Consultation OSP Gupta Case, 1982: The Judgement of the court was: No, Seniority can not be the only principle. Principle of Merit was considered for the first time. Merit can be determined alone by the president. It means President in consultation with PM and CoM. (means no need to take consultation of college of judges) In case of appointment of CJL, SC said since the word "May" has been used. So it is not obligatory on the President to take the consultation of college of judges. (hence, Seniority can be by-passed)