Supreme Court as a Protector of Fundamental Rights::

Under Article 32 of the Constitution, the Supreme Court has the power to issue writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorary. It is important to note that the Supreme Court issues these writs for the enforcement of fundamental rights. The cases related to the violation of fundamental right may be brought before the court both under original and appellate jurisdiction. Again, the power of High Courts to issue above writs is more wide in comparison to Supreme Court as the High Court can issue such writs to enforce all rights including the fundamental rights, whereas, the Supreme Court can issue these writs only for the enforcement of fundamental rights.

The writ of habeas corpus literally means to have the body. This writ is issued by the court to free a person who has been illegally detained by any authority or private person. The detained person is produced before the court and if the grounds of detention are not legal such person is made free. The writ of Habeas corpus is the only writ which can be issued against a private person as well as a public authority.

The writ of mandamus literally means 'we command'. This writ is issued by the court against a public authority, who has not performed his public or legal duty assigned to him. By the writ of mandamus, such public authority is forced to perform his official duty.
The writ of prohibition is issued by the Supreme Court against a judicial or Quasi-judicial authority, which has violated its jurisdiction. By the writ of prohibition, the action of such authority is stopped in a matter which is beyond its jurisdiction.

The writ of certiorary has the effect of quashing the decision of a judicial or Quasi-judicial authority in a matter which is beyond the jurisdiction of such authority.
The similarity between the writs of prohibition and certiorary is that both are issued by the Supreme Court against a subordinate court or Quasi-judicial authority on the ground of violation of its jurisdiction. However, the major difference between the two is that the writ of prohibition is issued when the subordinate authority has not passed any order and matter is still pending before such authority, whereas the writ of certiorary is passed when the final order has been passed by the subordinate authority to quash such final order. In both situations, the matter is referred to the authority which has the legal jurisdiction in such case.

The writ of Quo warranto is issued by the Supreme Court against persons who holds a public office to know the legal entitlement of such person to such public office. If the person is not legally entitled to hold such a public office, he is removed from such office by the final of this writ. However, certain conditions must be satisfied before the issue of writ of mandamus. First, the office must be of public character, created by a statute or Constitution itself. Secondly, the office shall be substantive one and not merely the function or employment of a servant. Thirdly, there must be a contravention of a statute or provision of Constitution when person is appointed to or holding such office.

Supreme Court as a Protector of Constitution or Power of Judicial Review::

In India, the principle of Supremacy of the Constitution is implemented. This denotes that all public authorities, their orders or law must be in accordance with the provisions of the Constitution. Such orders and laws should not violate the provisions of the Constitution. The Supreme Court of India acts as the protector of the Constitution by exercising the power of Judicial Review.

The power of judicial review denotes such power of the court by which it can declare null and void those orders of the executive and those laws passed by the legislatures, which violate any provision of the Constitution because, the Constitution is the fundamental law of land.

It should be pointed out that the power of judicial review is not gran¬ted to the Supreme Court, explicitly by the Constitution. However, the court has derived this power from Article 13(2) through gradual enlargement under theory of implied powers. Article 13(2) provides that the state shall not make any law which takes away or abridges the rights conferred by this part (Fundamental Rights) and any law made in contravention of this clause shall, to the extent of contravention, shall be null and void.

Thus, the Article 13(2) provides the power of judicial review with respect to the provisions related to the Fundamental Rights. However, the courts have enlarged the mandate of this article to cover the entire provisions of the Constitution under the power of judicial review by applying the theory of implied powers. This theory indicates that certain powers, are not explicit but implied in other powers.

Only the Supreme Court and the High Courts enjoy the power of judicial review in India. Again the power of judicial review cannot be exercised on its own until a case has not been brought before the court by the affected party.

The Supreme Court of the U.S. also enjoys the power of judicial review, which is wider in comparison to The Supreme Court of India. The American political system is based on the principle of judicial supremacy. It is remarked that in America Constitution is what judges say. Thus, the American Supreme Court can declare a law of legislature or an order of the executive as null and void, if it finds that such order or law is not just, even if it does not violate the provisions of the Constitution. On the other hand the Indian Supreme Court functions, on the basis of the principle of 'the procedure established by law', a phrase borrowed from the Japanese Constitution. Thus, Indian Supreme Court does not have the power to decide the 'justness' of a law or order of the government. It can declare such order or law null and void only if it explicitly violates some provisions of the Constitution.

In the UK, the political system is based on the principle of Supremacy of Parliament, which denotes that the Parliament is Supreme and it can pass any law, which cannot be questioned in any court. The courts in UK do not enjoy the power of judicial review. Thus, in India, a mid-path is adopted between the Supremacy of Parliament and the principles of judicial Supremacy by adopting the principle of Supremacy of Constitution and limited power of judicial review given to the courts.

Important Facts::

--> As amended in January 2009, the Chief Justice of India is paid a salary of Rs. 1 lakh/month, other judges are paid a monthly salary of Rs. 90,000.

--> The salary and other allowances of judges cannot be reduced to their disadvantage during their term of office; except during the enforcement of the financial emergency under Article 360.

--> The President of India administers the oath of office to the judges of Supreme Court. The format of oath is given in the third schedule of the Constitution.

--> If the post of both the President and the Vice-President falls vacant, the Chief Justice of India discharges the functions of the President till new incumbent is elected to the office of the President. M. Hidaytulla is the only Chief Justice who acted as President in 1969.

--> Ordinarily the seat of the Supreme Court shall be at Delhi. However, with the approval of the President, under Article 130, the Chief Justice of India may allow the sittings of the courts in other places.

--> According to Article 129, the Supreme Court shall be a court of Record and shall have all the powers of such courts including the power to punish for contempt of itself.

--> In the absence of the Chief Justice, the President has the power to appoint an Acting Chief Justice from among the Judges of Supreme Court (Article 126).

--> If there is a lack of quorum required to a session of the court, the Chief Justice of India, with the prior consent of the President, may appoint ad hoc judges from amongst the judges of High Courts, who have qualifications to become judge of Supreme Court.

--> Similarly, the Chief Justice of India with the prior consent of the President may request a retired judge of the Supreme Court or the High Court to sit and act as a judge of Supreme Court.

--> The interpretation of the Constitution falls within the domain of the Constitutional Bench which must consist of at least 5 judges.

--> The decisions of the Supreme Courts are taken by majority. However, minority opinion may be recorded in the judgment.