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India-The Judiciary

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Supreme Court

The Supreme Court is the ultimate interpreter of the constitution and the laws of the land. It has appellate jurisdiction over all civil and criminal proceedings involving substantial issues concerning the interpretation of the constitution. The court has the original and exclusive jurisdiction to resolve disputes between the central government and one or more states and union territories as well as between different states and union territories. And the Supreme Court is also empowered to issue advisory rulings on issues referred to it by the president. The Supreme Court has wide discretionary powers to hear special appeals on any matter from any court except those of the armed services. It also functions as a court of record and supervises every high court.

Twenty-five associate justices and one chief justice serve on the Supreme Court. The president appoints the chief justice. Associate justices are also appointed by the president after consultation with the chief justice and, if the president deems necessary, with other associate justices of the Supreme Court and high court judges in the states. The appointments do not require Parliament's concurrence. Justices may not be removed from office until they reach mandatory retirement at age sixty-five unless each house of Parliament passes, by a vote of two-thirds of the members in attendance and a majority of its total membership, a presidential order charging "proved misbehavior or incapacity."

The contradiction between the principles of parliamentary sovereignty and judicial review that is embedded in India's constitution has been a source of major controversy over the years. After the courts overturned state laws redistributing land from zamindar (see Glossary) estates on the grounds that the laws violated the zamindars' Fundamental Rights, Parliament passed the first (1951), fourth (1955), and seventeenth amendments (1964) to protect its authority to implement land redistribution. The Supreme Court countered these amendments in 1967 when it ruled in the Golaknath v State of Punjab case that Parliament did not have the power to abrogate the Fundamental Rights, including the provisions on private property. On February 1, 1970, the Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by Parliament in August 1969. The Supreme Court also rejected as unconstitutional a presidential order of September 7, 1970, that abolished the titles, privileges, and privy purses of the former rulers of India's old princely states.

In reaction to Supreme Court decisions, in 1971 Parliament passed the Twenty-fourth Amendment empowering it to amend any provision of the constitution, including the Fundamental Rights; the Twenty-fifth Amendment, making legislative decisions concerning proper land compensation nonjusticiable; and the Twenty-sixth Amendment, which added a constitutional article abolishing princely privileges and privy purses. On April 24, 1973, the Supreme Court responded to the parliamentary offensive by ruling in the Keshavananda Bharati v the State of Kerala case that although these amendments were constitutional, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution's "basic structure."

During the 1975-77 Emergency, Parliament passed the Forty-second Amendment in January 1977, which essentially abrogated the Keshavananda ruling by preventing the Supreme Court from reviewing any constitutional amendment with the exception of procedural issues concerning ratification. The Forty-second Amendment's fifty-nine clauses stripped the Supreme Court of many of its powers and moved the political system toward parliamentary sovereignty. However, the Forty-third and Forty-fourth amendments, passed by the Janata government after the defeat of Indira Gandhi in March 1977, reversed these changes. In the Minerva Mills case of 1980, the Supreme Court reaffirmed its authority to protect the basic structure of the constitution. However, in the Judges Transfer case on December 31, 1981, the Supreme Court upheld the government's authority to dismiss temporary judges and transfer high court justices without the consent of the chief justice.

The Supreme Court continued to be embroiled in controversy in 1989, when its US$470 million judgment against Union Carbide for the Bhopal catastrophe resulted in public demonstrations protesting the inadequacy of the settlement (see The Growth of Cities, ch. 5). In 1991 the first-ever impeachment motion against a Supreme Court justice was signed by 108 members of Parliament. A year later, a high-profile inquiry found Associate Justice V. Ramaswamy "guilty of willful and gross misuses of office . . . and moral turpitude by using public funds for private purposes and reckless disregard of statutory rules" while serving as chief justice of Punjab and Haryana. Despite this strong indictment, Ramaswamy survived parliamentary impeachment proceedings and remained on the Supreme Court after only 196 members of Parliament, less than the required two-thirds, voted for his ouster.

During 1993 and 1994, the Supreme Court took measures to bolster the integrity of the courts and protect civil liberties in the face of state coercion. In an effort to avoid the appearance of conflict of interest in the judiciary, Chief Justice Manepalli Narayanrao Venkatachaliah initiated a controversial model code of conduct for judges that required the transfer of high court judges having children practicing as attorneys in their courts. Since 1993, the Supreme Court has implemented a policy to compensate the victims of violence while in police custody. On April 27, 1994, the Supreme Court issued a ruling that enhanced the rights of individuals placed under arrest by stipulating elaborate guidelines for arrest, detention, and interrogation.

Data as of September 1995

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