By Jismi Joy-
India has one of the oldest legal systems in the world. Government of India Act, 1935 introduced as federal court of India. Federal court had a very limited jurisdiction.
After achieving independence in August, 1947, there was demand for enlarging the jurisdiction of Federal Court and granting more powers to it. On 26th January 1950, federal court gave way to the Supreme Court of India under the new constitution.
The judicial structure in India consists of Supreme Court, high court and subordinate courts. The Supreme Court is in the apex of the judicial system in India.
Similarly, the High Court is the highest court of the states and union territories. Article 124 to 147 of Constitution of India lay down the composition and jurisdiction of the supreme court of India.
According to the Constitution of India article 214 to 231 are governed by the provisions of the high court. However, under article 213, Parliament has the power to establish a common high court for two or more States.
There are currently 24 high courts in seven union Territories and 28 states currently there are many similarities and differences between the powers of the Supreme Court and High court.
JURISDICTION AND CONSTITUTION
According to the Constitution of India, the Supreme Court, the highest in the India, has more power than the high court. An order or law passed by the Supreme Court is binding on all courts and tribunals in India.
The Supreme Court plays a vital role in India’s constitutional system. The Supreme Court currently has 34 judges, including the chief justice appointed by the president of India.
Supreme Court judges retire upon attaining the age of 65 years. Normally the judges of Supreme Court are selected by a collegiums of the Supreme Court consists of senior most judges including the chief justice of India.
According to Article 124(4) of the Indian constitution, a member of higher judiciary cannot be removed from office except by impeachment.
An impeachment order is passed after an Address of the each house of Parliament supported by a majority of the total membership of that house and by majority of not less than two -third of members present and voting, and presented to the president in the same session.
Impeachment can be moved only on grounds of proved misbehavior or incapacity. The impeachment proceeding is done only in extreme cases.
The Supreme Court has original, appellate and advisory jurisdiction. Article 131 of the constitution grants exclusive jurisdiction to the supreme Court in any dispute between Government of India and one or more States, Government of India and any state or states on one side and one or more other states on the other side between two or more States, in so far as such disputes involve any question on which the existence or extent of a legal right depends.
Article 32 of the constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of fundamental rights.
It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce the fundamental rights.
The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one state high court to another state high court or from a court subordinate to another state high court.
The supreme court has also a very wide appellate jurisdiction over all courts and tribunals in India in as much as it may, in its discretion, grant special leave to appeal under article 136 of the constitution 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 has special advisory jurisdiction in matters which may specifically be referred to it by the president of India under article 143 of the constitution.
Under articles 129 and 142 of the constitution the Supreme Court has been vested with power to punish for contempt of court including the power to punish for contempt of itself.
According to article 214 of the Indian constitution stipulates that each state must have a high court.
Each high court comprises of a chief justice and such other judges as the president may, from time to time appoint. The chief justice of a high court is appointed by the president in consultation with the chief justice of India and the Governor of the state.
They can be removed from office only by impeachment. To be eligible for appointment as a judge one must be a citizen of India for ten years or must have practiced as an Advocate of a high court or two or more such courts in succession, for a similar period.
According to Article 226 high court has power to issue to any person within its jurisdiction, order or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of fundamental Rights and for any other purpose.
This is a special function of high court since the Supreme Court issues writs only for the enforcement of fundamental rights. Each high court has powers of superintendence over all courts within its jurisdiction.
It can call for returns from such Court, make issue general rules and prescribe forms to regulate their practice and proceedings.
The judgment pronounced by one high court does not apply to other High Court, including the lower courts. The retirement age for Supreme Court Judges is 65 years but the retirement age for High Court Judges is 62 years.
A Supreme Court judge cannot practice in other Courts in India after his retirement.
However a High Court judge can argue in the high court’s and above after his retirement.
Tiruathi balaji developers pvt. Ltd. V state of Bihar cause justice Lohoti described the nature of relationship between the two constitutional courts in the following terms:, ” according to the constitution, the supreme court and the high court are the record courts in the Indian judiciary.
The high court is not a court under the Supreme Court. Under article 226 the High Court has the power to exercise the rights conferred by the part lll of the constitution.
The high court exercises power of superintendence under Article 227 of the constitution over all subordinate courts has not been conferred with any power of superintendence if the supreme court and the high court are considered brothers, high court has greater jurisdiction but the supreme court is still the elder brother.
The Supreme Court is the apex court in all civil and criminal matters. Under Article 139-A, the supreme court may transfer any case pending before one high court to another high court or may withdrew the case to itself. The law declared by the Supreme Court under Article 141 will Apply to all high court in India.”
Dhakeswari cotton mills V. Commissioner of income tax, west Bengal case Justice M. C Mahajan it is said thus “It is note possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this court by the constitutional provision made in Article 136.
The limitations, whatever they be, are implicit in the nature and character of the power itself. it being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extra ordinary situation.
Beyond that it is not possible to fetter the exercise of this power by any set formula or rule…..it is however, plain that when the court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal with in the territory of India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this Article.
purpose is that it is the duty of the court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decision of these court or tribunals final and conclusive”.
Although the High court currently has greater jurisdiction, the Supreme Court still remains the apex court. The Supreme Court and the High court play an important role in the constitutional governance of India.