The Supreme Court of India holds the apex position in the judicial system and serves as the ultimate court of appeal as per the Constitution of India. It functions as the highest constitutional court with authority over judicial review. India, being a federal state, operates under a unified judicial system comprising three tiers: the Supreme Court, High Courts, and Subordinate Courts.
History
The Federal Court of India was established under the Government of India Act 1935. This court was responsible for resolving disputes between provinces and federal states, as well as hearing appeals against judgments of the high courts.
Following India’s independence, both the Federal Court and the Judicial Committee of the Privy Council were replaced by the Supreme Court of India, which was established in January 1950.
The Constitution of 1950 outlined the structure of the Supreme Court, comprising one Chief Justice and 7 puisne (junior) Judges. Over time, the Parliament has increased the number of Supreme Court judges, and presently, there are 34 judges, including the Chief Justice of India (CJI).
Constitutional Provision
The Indian Constitution establishes the Supreme Court under Part V (The Union) and Chapter 6 (The Union Judiciary). Articles 124 to 147 within Part V outline the organization, independence, jurisdiction, powers, and procedures of the Supreme Court.
Article 124(1) of the Indian Constitution mandates the existence of the Supreme Court of India, consisting of a Chief Justice of India (CJI) and, until Parliament enacts legislation specifying otherwise, not more than seven additional Judges.
The jurisdiction of the Supreme Court of India encompasses original jurisdiction, appellate jurisdiction, and advisory jurisdiction, alongside various other powers vested in the Court.
Structure and Composition
Currently, the Supreme Court comprises thirty-one judges, including one Chief Justice and thirty other judges. The Supreme Court (Number of Judges) Bill of 2019 increased the judicial strength to 34, adding four judges to the existing count.
Originally, the Supreme Court’s strength was set at eight, consisting of one Chief Justice and seven other judges. However, Parliament holds the authority to regulate this number.
According to the Constitution, Delhi is designated as the seat of the Supreme Court. Additionally, the Chief Justice of India has the discretion to designate other places as the seat of the Supreme Court, subject to the President’s approval. However, this provision is optional, and neither the President nor the Chief Justice can be compelled by any court to appoint any other place as the seat of the Supreme Court.
Appointment of Judges
The judges of the Supreme Court are appointed by the President. The Chief Justice of India (CJI) is appointed by the President after consulting with certain judges of the Supreme Court and high courts as deemed necessary.
For the appointment of other judges, the President consults with the CJI and additional judges of the Supreme Court and high courts as considered necessary. In the case of appointing a judge other than the Chief Justice, consultation with the Chief Justice is mandatory.
Historically, the tradition has been to appoint the most senior judge of the Supreme Court as the Chief Justice of India until 1973. However, this practice was deviated from in 1973 and 1977 when A N Ray and M U Beg were appointed as Chief Justices, respectively, superseding senior judges.
This discretion of the government was restricted by the Supreme Court in the Second Judges Case (1993). The Court ruled that only the senior-most judge of the Supreme Court should be appointed to the position of Chief Justice of India.
Type of Judges
Acting Chief Justice (Article 126)
In the event of a vacancy in the position of Chief Justice of India or when the Chief Justice is unable to fulfill their duties due to absence or any other reason, the President may appoint another Judge of the Supreme Court to perform the duties of the Chief Justice’s office.
Adhoc Judges (Article 127)
In the event of a quorum shortage, the Chief Justice of India (CJI) has the authority to designate a judge from a high court to serve on the Supreme Court bench. However, this action requires prior approval from the President and consultation with the Chief Justice of the relevant high court. During this period, the newly appointed judge is entitled to the salary, powers, and privileges of a Supreme Court judge.
Retired judges (Article 128)
The Chief Justice of India (CJI) has the authority to invite a retired judge from either the Supreme Court or a High Court to serve as a judge of the Supreme Court on a temporary basis. Prior to making such a request, the CJI must obtain consent from both the President of India and the individual being appointed. The appointed individual will receive a salary and allowances as determined by the President of India.
Collegium System
The Supreme Court has provided varying interpretations of the term ‘consultation’ in the aforementioned provisions.
In the First Judges case (1982), the Court ruled that consultation does not equate to concurrence but rather signifies an exchange of views.
Contrarily, in the Second Judges case (1993), the Court reversed its earlier stance and redefined consultation to mean concurrence.
In the Third Judges case (1998), the Court expressed that the consultation process led by the Chief Justice of India necessitates the involvement of a ‘plurality of judges’ in consultation. Merely the CJI’s opinion does not fulfill the consultation process; rather, he must consult a collegium comprising the four most senior judges of the Supreme Court. Even if two judges express dissenting views, the recommendation should not be forwarded to the government.
The Court emphasized that recommendations made by the Chief Justice of India without adhering to the prescribed norms and requirements of the consultation process are not obligatory on the government.
The Collegium system, established through the “three judges case,” has been operational since 1998. It is employed for the selection and transfers of judges in both High Courts and the Supreme Court.
Notably, the Collegium system is not explicitly mentioned in the original Constitution of India or in subsequent amendments.
Who heads collegium system?
The Supreme Court collegium, chaired by the Chief Justice of India (CJI), consists of four other most senior judges of the court. Similarly, a High Court collegium, headed by its Chief Justice, comprises four other most senior judges of that court.
Recommendations for judicial appointments made by a High Court collegium are forwarded to the government only after receiving approval from both the Chief Justice of India and the Supreme Court collegium.
Judges of the higher judiciary are exclusively appointed through the collegium system, and the government’s involvement comes into play only after the collegium has finalized the names for appointment.
Collegium system and NJAC?
The collegium recommends names of lawyers or judges to the Central Government, while the government also submits its proposed names to the Collegium. After considering the suggestions from both sides, the Collegium revisits the file to the government for final approval. If the Collegium reiterates the same name, the government must provide its consent, although there is no fixed timeframe for response, leading to delays in judicial appointments.
The establishment of the National Judicial Commission Act (NJAC) through the 99th Constitutional Amendment Act, 2014 aimed to replace the collegium system for judicial appointments. However, the Supreme Court upheld the collegium system and invalidated the NJAC as unconstitutional. The court argued that the involvement of the Political Executive in judicial appointments violated the “Principles of Basic Structure,” particularly the “Independence of Judiciary.”
Qualification of Supreme court judges
To qualify for appointment as a judge of the Supreme Court, an individual must meet the following criteria:
- Citizenship of India is mandatory.
- They should have served as a judge in one or more High Courts for a minimum of five years.
- Alternatively, they should have practiced as an advocate in one or more High Courts for at least ten years.
- The President must perceive them as a distinguished jurist.
The Constitution does not specify a minimum age requirement for this appointment.
Oath of Supreme Court Judge
Before assuming office, a person appointed as a judge of the Supreme Court is required to take an oath or affirmation before the President or an individual designated by the President for this task. In this oath, the judge pledges:
- Allegiance and fidelity to the Constitution of India.
- Protection of the sovereignty and integrity of India.
- Diligent, faithful, and impartial performance of duties to the best of their ability, knowledge, and judgment, without bias or prejudice.
- Upholding of the Constitution and laws of the land.
Tenure of Judges
The Constitution does not specify a fixed tenure for a judge of the Supreme Court. However, it outlines three provisions regarding their service:
- They serve until they reach the age of 65 years, with any dispute over their age determined by a authority designated by Parliament.
- They have the option to resign from their position by submitting a written request to the President.
- They can be removed from office by the President upon the recommendation of Parliament.
Removal of Judges
- A judge of the Supreme Court can be dismissed from their position through an order issued by the President, following the presentation of an address by Parliament within the same session.
- This address must be backed by a special majority in each House of Parliament, comprising a majority of the total membership of the House and a majority of not less than two-thirds of the members present and voting.
- The grounds for removal are limited to proved misbehaviour or incapacity.
- The Judges Enquiry Act of 1968 governs the process of impeachment for the removal of a Supreme Court judge.
- No Supreme Court judge has been impeached thus far. Impeachment motions against Justice V Ramaswami (1991–1993) and Justice Dipak Misra (2017-18) were unsuccessful in Parliament.
Independence of Judiciary
- Judges of the Supreme Court have security of tenure, serving until the age of 65 and can only be removed by presidential order on grounds of proven misbehaviour or incapacity, requiring a Special Majority.
- Their salaries and allowances are protected and cannot be reduced except during a financial emergency, with High Court expenses funded by the Consolidated Fund of the State.
- Parliament can only enhance the powers and jurisdiction of the Supreme Court, not diminish them.
- Discussion of a judge’s conduct in the discharge of duties is prohibited in the legislature.
- The Supreme Court holds the power to punish contempt of court, as per Article 129.
- There exists a Directive Principle of State Policy advocating for the separation of the judiciary from the executive, with Article 50 stipulating the establishment of a distinct judicial service free from executive influence.
Jurisdiction of supreme court
Original Jurisdiction:
The Supreme Court, functioning as a Federal court, resolves disputes within the Indian Federation, including conflicts involving:
- The Central government and one or more states,
- The Central government versus one or more states on one side and one or more states on the other, or
- Between two or more states.
- The Supreme Court holds exclusive original jurisdiction over such federal disputes, except for matters relating to:
- Disputes arising from pre-Constitution treaties, agreements, covenants, or similar instruments,
- Disputes governed by treaties or agreements explicitly excluding the Supreme Court’s jurisdiction,
- Inter-state water disputes,
- Matters referred to the Finance Commission,
- Certain expenses and pensions adjustment between the Centre and the states,
- Commercial disputes between the Centre and the states, and
- Claims for damages by a state against the Centre.
Writ Jurisdiction
The Supreme Court holds the authority to issue writs, such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to safeguard the fundamental rights of citizens.
This jurisdiction is original, allowing aggrieved citizens direct access to the Supreme Court for redressal, bypassing lower courts.
- However, this writ jurisdiction is not exclusive, as High Courts also possess the authority to issue writs for fundamental rights enforcement.
- Appellate jurisdiction is a primary function of the Supreme Court, involving four categories of appeals:
- Appeals concerning constitutional matters,
- Appeals related to civil matters,
- Appeals pertaining to criminal matters, and
- Appeals granted special leave.
Advisory Jurisdiction
Article 143 of the Constitution empowers the President to request the Supreme Court’s opinion on matters falling into two main categories:
1. Any significant legal or factual question of public importance that has arisen or is likely to arise.
2. Disputes arising from pre-constitution treaties, agreements, covenants, engagements or similar instruments.
Supreme court : a court of record:
As a Court of Record, the Supreme Court possesses two significant powers:
1. It maintains records of its judgments, proceedings, and actions, which serve as a permanent archive and are accepted as evidence in legal matters without question.
2. These records are regarded as legal precedents and authoritative references in subsequent legal cases.
Additionally, the Supreme Court has the authority to penalize contempt of court, imposing penalties such as imprisonment for up to six months, fines of up to 2,000 rupees, or both.
Power of Judicial Review:
Judicial review represents the authority of the Supreme Court to scrutinize the constitutionality of legislative laws and executive directives issued by both the Central and state governments. Through this process, if these laws and orders are determined to contravene the Constitution, they may be declared unlawful, unconstitutional, and devoid of legal validity by the Supreme Court. As a result, the government is barred from enforcing them. This pivotal function empowers the judiciary to act as a check on the legislative and executive branches, ensuring adherence to constitutional principles and protecting fundamental rights.
Also read about Judicial Review and Judicial Activism.