Supreme Court of India

Topics Discussed: -

·       Introduction

·       Organization of the Supreme court

·       Appointment of Judges of SC

·       Qualification of Judges of SC

·       Oath or Affirmation of Supreme Court Judges

·       Tenure of Supreme Court Judges

·       Removal of Supreme Court Judges

·       Important Terms relating to SC

·       Seat of Supreme Court

·       Independence of Supreme Court

·       Jurisdiction and Powers of Supreme Court

·       Introduction

       I.            India has a single unified and integrated judicial system and the Supreme Court is the highest court in India. This is unlike the dual court system in USA- the federal and state courts, adjudicating under separate Constitutions.

    II.            A single, integrated judiciary represents a hierarchy of courts. The Supreme Court stands at the top of this single integrated judicial system with High Courts at the State level.

  III.            The Indian constitution provides for a provision of Supreme Court under Part V (The Union) and Chapter 6 (The Union Judiciary).

 IV.            Articles 124 to 147 in Part V of the Constitution deal with the organisation, independence, jurisdiction, powers and procedures of the Supreme Court.

    V.            Article 124 provides for the establishment and constitution of Supreme Court of India, which is the apex court of India. It was established on 28th January, 1950 i.e. two days after the commencement of the Constitution.

·       Organization of the Supreme court

       I.            Article 124(1) – “There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a large number, of not more than seven other judges.”

    II.            The Parliament is competent to increase the number of judges if it deems necessary. To begin with, besides the Chief Justice, there were only 7 other judges. The Parliament has increased the number of judges from time to time. As in 2014, there are 29 judges besides the Chief Justice who is also called the Chief Justice of India.

  III.            The sanctioned strength of the judges is 34, consisting of the Chief Justice and 33 other judges.

Note: Supreme Court (Number of Judges) Bill of 2019 has added four judges to strength. It increased the judicial strength from 31 to 34, including the CJI.

·       Appointment of Judges of SC

       I.            The judges of the Supreme Court are appointed by the President. The CJI is appointed by the President after consultation with such judges of the Supreme Court and high courts as he deems necessary.

    II.            The other judges are appointed by the President after consultation with the CJI and such other judges of the Supreme Court and the high courts as he deems necessary. The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.

 III.        Appointment of Chief Justice from 1950 to 1973: The practice has been to appoint the senior most judge of the Supreme Court as the chief justice of India. This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges. Again in 1977, M U Beg was appointed as the chief justice of India by superseding the then senior-most judge.

v This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the senior most judge of the Supreme Court should alone be appointed to the office of the Chief Justice of India.

·       Collegium System

ü Collegium system was born through “Third judges case” and it is in practice since 1998. It is used for appointments and transfers of judges in High courts and Supreme Courts.

ü There is no mention of the Collegium either in the original Constitution of India or in successive amendments

Note: Controversy over Consultation and Evolution of Collegium system

·       The Supreme Court has given different interpretations of the word ‘consultation’ in the above mentioned provisions.

ü In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies exchange of views.

ü In the Second Judges case (1993), the Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence.

ü In the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India requires ‘consultation of plurality judges’.

ü The sole opinion of the CJI does not constitute the consultation process. He should consult a collegium of four senior most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.

ü The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process are not binding on the government.

·       Qualification of Judges of SC

As per Article 124, an Indian citizen who is below 65 years of age is eligible to be recommended for appointment as a judge of the SC if:

1.    He/she has been a judge of one or more High Courts, for at least 5 years, or

2.    He/she has been an advocate in one or more High Courts for at least 10 years, or

3.    He/she is in the opinion of the President, a distinguished jurist.

Note: The Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court.

·       Oath or Affirmation of SC Judges

A person appointed as a Supreme Court Judge, before entering upon his office takes in the form prescribed an Oath or Affirmation before the President or some person appointed by him (Article 124 (6).

          In his oath, a judge of the Supreme Court swears:

       I.            to bear true faith and allegiance to the Constitution of India;

    II.            to uphold the sovereignty and integrity of India;

  III.            to duly and faithfully and to the best of his ability, knowledge and   judgement to perform the duties of the Office without fear or favour, affection or ill-will; and

 IV.            to uphold the Constitution and the laws.

·       Tenure of SC Judges

The Constitution has not fixed the tenure of a judge of the Supreme Court. However, it makes the following three provisions in this regard:

       I.            He holds office until he attains the age of 65 years. Any question regarding his age is to be determined by such authority and in such manner as provided by Parliament.

    II.            He can resign his office by writing to the President.

  III.            He can be removed from his office by the President on the recommendation of the Parliament.

·       Removal of SC Judges

1)    A motion support removal must be supported by 100 Lok Sabha / 50 Rajya Sabha members. The presiding officer may or may not admit it. 

2)    If admitted an inquiry committee of Chief justice of India or a Supreme Court judge; Chief justice of high court and distinguished jurist checks if judge is guilty

3)    If the committee finds the judge guilty then parliament can pass a motion by special majority in both houses.

4)    An address supported by this motion must be presented to the president on the same day. Then by a presidential order the judge can be removed.

·       Important Terms relating to SC

1.   Acting Chief Justice (Art. 126)

·       When the Office of the Chief Justice of India is vacant or when the Chief Justice, by reason of absence or otherwise, is unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.

2.   Ad Hoc Judges (Art. 127)

·       If at any time there is a lack of quorum of the Judges of the Supreme Court to hold or continue any session in the Court, the Chief Justice of  India may with the previous consent of President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.

3.   Retired Judges (Art. 128)

·       The Chief Justice of India with the previous consent of the President may request a retired Judges of the Supreme Court or Federal Court or a retired Judge of a High Court who is duly qualified to be appointed as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court. Such a judge is entitled to such allowances as the President may determine.

·       Seat of Supreme Court (Art. 130)

The SC shall sit in Delhi or, in such other place or places, as the Chief Justice of Indian may, with the approval of the President, from time to time appoint.

·       Independence of Supreme Court

       I.            The Supreme Court is a Federal court, the highest court of appeal, the guarantor of the fundamental rights of the citizens and guardian of the Constitution.

·       Therefore, its independence becomes very essential for the effective discharge of the duties assigned to it. It should be free from the encroachments, pressures and interferences of the executive (council of ministers) and the Legislature (Parliament). It should be allowed to do justice without fear or favour.

    II.            The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the   Supreme Court:

1.    Mode of appointment

2.    Security of tenure

3.    Fixed service conditions

4.    Expenses charged on the consolidated fund

5.    Conduct of judges cannot be discussed

6.    Ban on practice after retirement

7.    Power to punish for its contempt

8.    Freedom to appoint its staff

9.    Its jurisdiction cannot be curtailed

10.                       Separation from Executive

·       Jurisdiction and Powers of Supreme Court

·       Original Jurisdiction

1.    As a Federal court, the Supreme Court decides disputes between different units of the Indian Federation. More elaborately, any dispute between:

Ø the Centre and one or more states; or

Ø the Centre and any state or states on one side and one or more states on the other; or

Ø between two or more states.

2.   In the above federal disputes, the Supreme Court has exclusive original jurisdiction.

3.    Further, this jurisdiction of the Supreme Court does not extend to the following:

ü A dispute arising out of any pre-Constitution treaty, agreement, covenant,

ü engagement, sanad or other similar instrument.

ü A dispute arising out of any treaty, agreement, etc., which specifically provides that the said jurisdiction does not extend to such a dispute.

ü Inter-state water disputes.

ü Matters referred to the Finance Commission.

ü Adjustment of certain expenses and pensions between the Centre and the states.

ü Ordinary dispute of Commercial nature between the Centre and the states.

ü Recovery of damages by a state against the Centre.

·       Writ Jurisdiction

1.    The Supreme Court is empowered to issue writs, including habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of the fundamental rights of an aggrieved citizen.

ü In this regard, the Supreme Court has original jurisdiction in the sense that an aggrieved citizen can go directly to the Supreme Court, not necessarily by way of appeal.

ü  However, the writ jurisdiction of the Supreme Court is not exclusive. The High Courts are also empowered to issue writs for the enforcement of the Fundamental Rights.

·       Appellate Jurisdiction

1.    The Supreme Court is primarily a court of appeal and hears appeals against the judgements of the lower courts. It enjoys a wide appellate jurisdiction which can be classified under four heads:

ü Appeals in constitutional matters

ü Appeals in civil matters

ü Appeals in criminal matters

ü Appeals by special leave

·       Advisory Jurisdiction

1.    The Constitution under Article 143 authorises the President to seek the opinion of the Supreme Court in the two categories of matters:

ü On any question of law or fact of public importance which has arisen or which is likely to arise.

ü On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement or other similar instruments.

·       A Court of Record

1.    As a Court of Record, the Supreme Court has two powers:

ü The judgements, proceedings and acts of the Supreme Court are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any court.

ü They are recognized as legal precedents and legal references.

ü It has power to punish for contempt of court, either with simple imprisonment for a term up to six months or with fine up to 2,000 or with both.

·       Power of Judicial Review

1.    Judicial review is the power of the Supreme Court to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments.

2.    On examination, if they are found to be violate of the Constitution (ultra-vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the Supreme Court. Consequently, they cannot be enforced by the Government.