FEW LINES FROM MY BOOK TITLED : Practice & Procedure of Supreme Court Edition 2014. 1) Historical perspective. Under the British regime, the Privy Council or King in Council, as it was generally called, was the highest forum to entertain appeals from the judgments and orders passed by the courts in India. In 1833, it was further named the Judicial Committee of Privy Council by enactment of the Judicial Committee Act 1833, wherein the Committee was empowered with enormous advisory powers, binding on the Crown. The decisions of the Judicial Committee used to be contained in advisory form, though, in practice, the Crown always accepted its advice, and it was unthinkable that its reports and advices will not be given effect to. English concepts came to be assimilated with Indian laws through The Privy Council and council acted as a channel. It served as a bridge between the Indian and the English legal system, over which legal ideas travelled from England to India. Under the British regime, the common law of England was introduced in India through this body, as the base of its legal system. During its career as the highest court of appeals from India for the period of about 200 years, Privy Council rendered over 2,500 judgments, and till today these judgments constitute the fountain-source of law on many points in India now called south Asian countries. There was a rising demand for establishment of Independent Supreme Court for the British India, since it was felt that appeal to the Privy Council was very costly and beyond the means of common man. More important was the reason that it detracted from the self respect of the Indian people. Government of India Act, 1935 introduced a federal constitution to India, involving distribution of powers between the Centre and the constituent units. The Government of India Act 1935 retained the High Courts and also provided for creation of a Federal Court for British India. As such, the Federal Court of India began functioning from October 1, 1937. Its judges were appointed by the Crown and held office till completing the age of 65 years. The judges could be removed only on the grounds of infirmity of mind or body or misbehavior when on reference made by the Crown, the Judicial Committee of Privy Council so recommends. To begin with, Federal Court had a very limited jurisdiction, confined to original jurisdiction in disputes between the centre and constituent units or inter se amongst the latter, advisory jurisdiction and appellate jurisdiction on a certificate from the High Court. Appeals from Federal Court could go to the Privy Council, from the judgments rendered in exercise of original jurisdiction, or by leave of the Federal Court or the Privy Council. In cases involving interpretation of Constitution, the parties had to first go to Federal Court in appeal from the High Court, and in other cases appeals from the High Courts lay directly to the Privy Council. It could give advice on such questions of public importance, as were referred to it by the Governor General, in his discretion. 2) Establishment of Federal Court of Pakistan: On 14th and 15th August 1947, Pakistan and India came into existence respectively and both the new born states retained, the Government of India Act 1935 as a provisional Constitution. Resultantly, the legal and judicial system of the British period continued, with some changes, according to the requirements of the new born states. A new High Court was established at Dacca by the High Court (Bengal) Order 1947, while the Lahore High Court continued to function and so did the Sindh Chief Court and the courts of Judicial Commissioner in NWFP (now Khyber-Pukhtunkhwa) and Baluchistan. By December 1948, a new Federal Court was set up under the Federal Court of Pakistan Order 1948 while giving the effect to have been established on 14th August 1947. During the mentioned period, no case was adjudicated or decided by the Federal Court of Pakistan. However, the provision of Government of India Act 1935, regarding powers, authority and jurisdiction of Federal Court, High Courts and Judicial Commissioner Courts, remained intact till 1954 when an amendment was brought to the Government of India Act, 1935, with a view to empower the High Courts to issue prerogative writs. On 19th July 1949, The Federal Court of Pakistan was housed initially in the Sindh Chief Court’ Building at Karachi which was later on shifted to Lahore and housed in the Lahore High Court building. 3) Establishment of Supreme Court of Pakistan: The first Constitution of Pakistan (1956) did only rename the Federal Court as the Supreme Court of Pakistan with provision regarding the sitting of the Court. It provided that Supreme Court shall sit in Karachi or such other places as the Chief Justice of Pakistan, with the approval of the President, may determine. However, the principal seat of the Court continued to be at Lahore. The second enacted Constitution (1962) provided for the principal seat of the Court to be transferred to Islamabad (New Capital) with provision to sit in other places as well. Also the 1973 Constitution reiterated the earlier provision of shifting the Court to Islamabad. However the Court continued to be at Lahore because of non-availability of proper accommodation till 1974 when the Supreme Court was shifted to Rawalpindi and housed in an improvised building i.e. East Pakistan House. Later on, on 31st December 1993, the Court was shifted to its new building situated in Constitution Avenue, Islamabad. Related the Judicial system of Pakistan, no drastic changes were brought by the 1956 and 1962 Constitution except renaming the Federal Court as Supreme Court and provision of the principal seat. The 1973 Constitution provided the up-gradation of Chief Court of NWFP and Judicial Commissioner Court, Baluchistan into full-fledged High Courts. In 1980, during Islamisation period, a new court, called Federal Shariat Court was established by amendment to the Constitution of 1973 with jurisdiction to determine, suo moto or on petition by a citizen or the Federal Government or a Provincial Government, as to whether or not certain provisions of law is repugnant to the injunctions of Islam. The Constitution of 1973 fairly provides for the separation of judiciary from the executive and the independence of judiciary. The Constitution also entrusts the superior courts with an obligation to preserve, protect and defend the Constitution. It also provides the qualification of judges, their mode of appointment, service conditions, salary, and pension. The Constitution further provides for the grounds as well as forum and procedure for the removal of judges of the superior courts.
Posted on: Sat, 01 Feb 2014 10:45:27 +0000
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