This article is written by Ms. Sushree Surekha Choudhury from KIIT School of Law, Bhubaneswar. The article gives a detailed description of the Federal Court of India and its evolution to the present Supreme Court of India. 

It has been published by Rachit Garg.

Introduction

We have all been to schools, no? (Of course, we have! “What kind of question is that author?”, you must be thinking.) Well, remember your school days, your Principal, and the Director of your university? We might have been fearful of them, but weren’t they an absolutely necessary part of the organization? Imagine going to a school with no principal. Who looks after the management and administration? If a teacher tomorrow punishes you arbitrarily or says something mean and demeaning, to whom would you complain? Do you feel the need for a higher authority? The need was felt in the Indian judicial system as well. The Federal Court of India (now known as the Supreme Court of India) came to become the ultimate court of appeals for cases decided by the High Courts. Just as you and I know how essential a Principal/Director is to an educational institution, the lawmakers and policymakers felt the need for a court of appeals and superior powers to administer justice in a proper manner. 

The Federal Court of India was set up and inaugurated on October 1, 1937, and continued to be the supreme authority of the Indian judiciary until 1950, when the Federal Court of India was replaced by the present Supreme Court of India. In this article, we will learn about the history and timelines that have led to the Supreme Court as we have it today. We will learn about the Government of India Act (1935), which led to the establishment of the Federal Court. 

History of the formation of Federal Court of India

Sir Hari Singh Gour was the first lawmaker to propose the need for a Court of final appeal in India. He suggested replacing the Privy Council with this court of appeal. He moved resolutions in this regard to the Central Legislative Assembly during the 1920s. In the 1931-32 session of the Central Legislative Assembly, this resolution was approved and passed for the establishment of a Federal Court for India. In November 1934, the Joint Select Committee of Parliament recommended the establishment of the Federal Court of India. The Supreme Court of India, as we have it today, has its traces in the Federal Court of India. It was for the first time that a supreme body and a court of final appeals were established by lawmakers in India. This system of courts has evolved through phases of history in India as:

  • The Regulation Act of 1773 for the first time established the Supreme Court of Judicature at Calcutta (1774). This was established as a Court of Record. It was given authority to determine civil and criminal cases in Odisha, Bihar and Bengal provinces.
  • This was followed by the establishment of the Supreme Courts of Madras (1800) and Bombay (1823) by King George III.
  • In 1861, the Indian High Courts Act (1861) established high courts for all provinces. This abolished the Supreme Courts of Calcutta, Madras and Bombay. 
  • These high courts ran the judiciary in different provinces, but a need was felt to have an ultimate court of appeals. This is when the resolution was passed for the establishment of the Federal Court of India. 
  • The Federal Court of India was established under the Government of India Act (1935).
  • The jurisdiction of the Federal Court of India expanded from solving disputes between provinces and the federal state to hearing appeals from the High Courts of all provinces. 
  • Apart from the Government of India Act (1935), the Federal Courts were also empowered by the Federal Court Act (1937). This Act empowered the Federal Court to make rules and regulations to regulate the courts in India. 
  • The Federal Court continued to be the final court of appeals in India till 1950. 
  • When India attained independence in 1947, the Constitution of India (1949) was drafted and enacted in 1950. This also replaced the Federal Court with the present Supreme Court of India. The first sitting of the Supreme Court of India was held on January 28, 1950.

The Government of India Act (1935) 

Part IX, Chapter 1 of the Government of India Act (1935) made provisions for the Federal Court of India. Section 200-218 of Part IX made a detailed description of the Federal Court of India as:

  • Section 200 established the Federal Court of India. It also spoke about the composition of this court. The Federal Court came to have a Chief Justice of the Court with the aid of six judges. The number of judges could be increased by the Chief Justice if deemed necessary after taking approval from the Governor-General of India. 
  • The judges of the court shall be appointed by the Chief Justice by warrant under the Royal Sign. These judges could hold office till attaining the age of 65 years unless resigned or removed from office for appropriate reasons. 
  • For being appointed as a judge, the following qualifications were required:
  1. He/she should have been a High Court judge in any province or of the federal state, or
  2. He/she was a barrister in England or Northern Ireland for 10 years or had been a member of the Faculty of Advocates in Scotland for 10 years, or
  3. He/she has been a pleader in any High Court of India.
  • A person was disqualified from being the Chief Justice of the Federal Court if:
  1. He/she was not a barrister, a member of the Faculty of Advocates or a pleader during his first judicial appointment, or
  2. He/she has not been a barrister in England or Northern Ireland for 15 years or has not been a member of the Faculty of Advocates in Scotland for 15 years. 
  • A person qualified and appointed to the Federal Court of India must take an oath and affirmation to the Governor-General of India before subscribing to his office, as per the Fourth Schedule of the Act.
  • Section 201 of the Government of India Act (1935) specified the salaries, allowances and remuneration of the judges and Chief Justice of the Federal Court. 
  • Section 202 stated that in case the office of the Chief Justice becomes vacant, any other judge of the Federal Court is appointed to fill the vacancy temporarily until a new Chief Justice is appointed. The Governor-General of India enjoys discretion in this regard.
  • Section 203 made the Court a ‘Court of Record’ with its primary seating in Delhi.
  • Section 204 granted original jurisdiction to the Court on disputes between the provinces and the federal state on determining the legal rights with respect to the questions of law and question of fact. The Court’s judgement under original jurisdiction was considered declaratory in nature.
  • Sections 205-209 granted appellate jurisdiction to the Court on matters arising from disputes as appeals from the High Courts of British India. These sections determined the scope and powers of the Court under appellate jurisdiction. It also gave power to the Federal Legislature to expand the appellate jurisdiction of the Court to matters at the discretion of the Governor-General of India. The appellate jurisdiction could be decided by the Federal Court in the form of stay orders, decrees, and costs as the case may be. This was facilitated by the provisions of Section 209.
  • Section 210 spoke about the enforcement of the orders and decrees of the Federal Court. All directed authorities in India were mandated to abide by and facilitate the judgement passed by the court which required their involvement. 
  • The Federal Court could send letters of request to the Ruler of State for the institution or reopening of special cases in the Federal Court or any High Court of India. The Ruler of State then facilitated this case by making orders to the appropriate courts under Section 211, if deemed necessary.
  • Section 212 gave vast powers to the Federal Court by stating that the decisions of the Court ‘shall be binding all across the country and on all subordinate courts.’
  • Section 213 granted powers to the Governor-General of India to consult the Federal Court in matters of public importance on questions of law and fact.
  • Section 214 granted powers to the Federal Court to make rules for the conduct of its business with the Governor-General’s approval and monitoring. 
  • The Federal Legislature could grant ancillary powers to the Federal Court of India by the provisions of Section 215 of the Government of India Act (1935). Such ancillary powers were to be exercised in consonance with the law of the land.
  • Section 216 stated that the charges and expenses of the Federal Court were to be taken by the Federation of India. The Governor-General enjoyed discretion in determining and granting administrative expenses. 

The Federal Court of India ran according to these provisions of the Government of India Act (1935) until 1950, when it was replaced by the Supreme Court of India.

The Supreme Court of India

new legal draft

Post-independence in 1947, the Constitution of India came into existence in 1950. This also replaced the former Federal Court with the present Supreme Court of India. The newly formed Supreme Court held its first sitting on January 28, 1950. The Supreme Court was given the same powers as the Federal Court had, and the decisions of the Supreme Court became binding all across India. The Supreme Court was given a crucial power, the power of judicial review. The Supreme Court could strike down the laws and rules made and enacted by the legislature or executive through the power of judicial review. This power was exercised on such acts of legislature and executive which would be inconsistent with the Constitution of India or infringes the Part III (Fundamental Rights) of the Constitution. It also exercises the power of judicial review to ensure the division of powers between the three organs of government, i.e., the executive, the legislature, and the judiciary. The Supreme Court performs these functions empowered by the Constitution of India. The Supreme Court also acts as a Court of Record through the provisions of Article 129 of the Constitution.

Constitutional provisions regarding the Supreme Court of India

Provisions for the Supreme Court of India are embedded in Part V, Chapter IV of the Constitution. This part talks about the Union Judiciary. Ranging from Articles 124-147, this part talks about the composition of the Supreme Court, qualifications and requirements for the appointment of judges to the Supreme Court, office and tenure of these judges, resignation and removal of the judges of the Supreme Court, and other provisions related to the Supreme Court of India. These provisions can be seen as follows:

Composition of the Supreme Court of India

Article 124 of the Constitution makes provision for the establishment of a Supreme Court for India. It further stated that there shall be a Chief Justice for the Supreme Court of India and seven other judges for the aid of the Chief Justice. The Chief Justice of the Supreme Court is the Chief Justice of India as the Supreme Court is the apex court of the country. The number of judges can be increased or decreased by an act of Parliament if deemed necessary. This provision has been used many times through Amendment Bills, and the Supreme Court presently has 33 judges, apart from the Chief Justice of India. 

The strength of 31 judges (Chief Justice and 30 other judges as of 2009) has been further increased to 34 by the Supreme Court (Number of Judges) Amendment Bill of 2019. Parliament is further authorized to regulate this and increase or decrease the number of judges in the Supreme Court of India. 

The Supreme Court of India has its seat in Delhi. It has been so from the very beginning but can be changed by the Chief Justice with the approval of the President of India. This provision is, however, optional and discretionary. It is not mandatory for the Chief Justice to do so. Article 130 contains provisions for the seating of the Supreme Court.

Appointment of judges to the Supreme Court of India

The Supreme Court judges are appointed by the President of India. The President further appoints the Chief Justice in consultation with judges of the Supreme Court and other High Courts of India as he deems fit and proper. The judges of the Supreme Court are appointed in consultation with the Chief Justice. This is a mandatory provision. The practice has been to appoint the senior-most judge of the Supreme Court as the Chief Justice of India. This practice was reaffirmed in the Supreme Court judges’ case (Second Judges’ case) in 1993.

The salaries, allowances and remuneration of the Supreme Court judges and the Chief Justice of India are determined by Parliament under the provisions of Article 125 of the Constitution. 

The Chief Justice of India can appoint ad hoc judges from the High Courts to maintain the quorum of the Supreme Court if necessary. This appointment is made with the approval of the President of India and is made under Article 127 of the Constitution.

Qualifications, tenure, and removal of judges

To be appointed as a judge of the Supreme Court of India, a person must qualify the following conditions:

  1. He/she must be an Indian citizen. 
  2. He/she should have been a High Court judge (or High Courts in succession) for 5 years, or
  3. He/she should have been an advocate in a High Court (or High Courts in succession) for 10 years, or
  4. He/she should be a distinguished jurist in the opinion of the President of India.

Any person possessing the above-mentioned qualifications when appointed as a judge to the Supreme Court of India has to subscribe to his office after making an oath or affirmation to the President of India or anyone on his behalf and make the following oaths:

  1. To be faithful to the Constitution of India,
  2. To uphold the sovereignty and integrity of India. 
  3. To be faithful to his office and perform his duties to the best of his abilities, knowledge and honesty, and
  4. To uphold the Constitution and other laws of the nation.

Although the tenure of the judges of the Supreme Court is not expressly mentioned in the Constitution of India, they hold office until attaining the age of 65 years, unless they resign or are removed from office earlier. 

A Supreme Court judge can be removed from his office by the President’s order. This is carried out after passing a resolution with a special majority in both the Houses of Parliament. A Supreme Court judge can be removed only on two grounds, i.e., incapacity and/or misbehavior. Till today, no Supreme Court judge has been impeached in India.

Office of the Supreme Court judges 

An Acting Chief Justice can be appointed by the President of India under the provisions of Article 126. This is done when the office of the Chief Justice becomes vacant. The vacancy could be temporary or permanent, and the acting judge holds office until a new Chief Justice is appointed or the absent Chief Justice resumes office.

The Chief Justice of India can also appoint High Court judges to the Supreme Court to fulfill the quorum for sittings of the Supreme Court if it becomes necessary to do so. This is done under Article 127 of the Constitution. 

The Chief Justice can also appoint retired judges to act as Supreme Court judges temporarily. This is done after the due approval of the President of India and as per the provisions of Article 128 of the Constitution. 

The Chief Justice can make rules and conduct the business of the Supreme Court of India as per Article 145 of the Constitution. These rules are made in consonance with the Constitution and other laws of the nation. These rules are made with the approval of the President of India. 

Jurisdiction of the Supreme Court of India

The Supreme Court of India primarily enjoys original jurisdiction. Empowered by Article 131 of the Constitution, the Supreme Court has original jurisdiction to determine disputes between the Centre and state(s); Centre and state(s) and state(s); or between two or more states. However, the original jurisdiction of the Supreme Court does not extend to the following:

  1. A dispute arising from a treaty or convention signed before the commencement of the Indian Constitution,
  2. A dispute arising out of a treaty or convention that specifically excludes the Supreme Court from exercising its jurisdiction,
  3. Inter-state water disputes,
  4. Disputes addressed by the Finance Commission of India,
  5. Disputes relating to pensions and expenses between the Centre and states,
  6. Commercial disputes between the Centre and states,
  7. Recovery of damages by a state from the Centre.

The original jurisdiction of the Supreme Court also extends to the writ jurisdiction of the Supreme Court. The Supreme Court can issue writs of Habeas Corpus, Quo Warranto, Prohibition, Certiorari, and Mandamus. A citizen can reach the Supreme Court of India by way of a writ petition, filed directly under the provisions of Article 32 of the Indian Constitution for the violation of fundamental rights.

Articles 132-136 of the Indian Constitution speak about the Appellate jurisdiction of the Supreme Court. The Supreme Court has jurisdiction to hear appeals from orders and decisions of the lower courts in constitutional matters (Article 132), civil matters (Article 133), criminal matters (Article 134) and appeals by Special Leave Petition (Article 136).

The Supreme Court is vested with advisory jurisdiction under Article 143 of the Indian Constitution. The President of India can seek advice from the Chief Justice of India under the provisions of Article 143. This jurisdiction is used in matters relating to public importance where the President seeks advice from the Chief Justice on questions of law and facts. The President can also seek advice from the Chief Justice in disputes arising out of treaties and conventions made before the commencement of the Constitution. Even though the Supreme Court does not have original jurisdiction over these treaties and conventions, it is a competent court to exercise advisory jurisdiction.

Independence of judiciary

The Supreme Court has been vested with the highest degree of powers and duties in the Indian judiciary. It is the highest court of appeals. It enjoys ultimate discretion. Its decisions are binding on every citizen, body or authority within the Indian jurisdiction. It upholds the values of the Constitution and other laws of the nation. It upholds natural justice. It ensures the fundamental rights of Indian citizens are not infringed. With all these powers and responsibilities, the judiciary needs to be free from bias and influence to be able to do complete justice. This is why the Indian Parliament has granted the right of independence to the judiciary. This ensures that the judiciary is free from the other organs of the government. The Supreme Court’s decisions are binding, and the Court is not answerable to the executive or the legislature. The Supreme Court can even strike down laws made and enacted by the other two organs of the Government and this decision shall be binding on them. The Supreme Court’s independence is reflected in the following provisions where the Court enjoys final discretion:

  • Mode of appointment of judges and their tenure of office,
  • Rules on the service conditions of the judges,
  • Expenses charged by the Courts from the Consolidated Fund of India,
  • It is a rule that the judges’ conduct cannot be subject to discussion and debate,
  • The judiciary puts a ban on further practice by the retired judges,
  • Power to punish for contempt of Court, and 
  • Absolute jurisdiction in matters referred to the appropriate courts. 

Conclusion

The Indian judiciary is as old as the history of civilization in our country. It has been through phases of evolution and development to become what it is today. For the longest time, the Federal Court of India exercised its powers as the highest court of appeals in India. This was during the British Raj in India. The Government of India Act (1935) established the Federal Court of India to be a final court of appeals and to enjoy higher powers over all the provincial courts (High Courts) of British India. This idea was carried forward even after independence, and the Federal Court was replaced by the Supreme Court of India by the Indian Constitution in 1950. Ever since, empowered by Article 135, the Supreme Court enjoys the powers that were vested in the Federal Court of India and upholds justice in the country. 

Frequently Asked Questions (FAQs)

How can a judge of the Supreme Court be removed?

One of the two grounds (misbehaviour or incapacity) has to be proven for removing a judge of the Supreme Court. A resolution has to be passed by both Houses of Parliament with a special majority, followed by the approval of the President. The President then removes the judge from his office.

What is the average salary and remuneration of Supreme Court judges?

On an average, the Chief Justice of India receives a remuneration of INR 1 LPA and other judges can receive up to 90,000 INR. 

What happens after a judge’s retirement?

A retired judge is banned from practising in any court of law after retirement. The Chief Justice can request a retired judge to fill the quorum in a Supreme Court sitting under Article 128. This is done only with the due consent of these retired judges of the Supreme Court or the former Federal Court of India.

References


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