Supreme Court

• The Indian Constitution establishes an integrated judicial system, with the Supreme Court at the top and high courts below.

• The Supreme Court was inaugurated on January 28, 1950, succeeding the Federal Court of India (established under the Government of India Act of 1935).

• Articles 124 to 147 in Part V of the Constitution deal with the Supreme Court's organization, independence, jurisdiction, powers, and procedures.

Composition and Appointment

• The Supreme Court currently consists of thirty-four judges (one chief justice and thirty-three other judges).

• Originally, the Supreme Court had eight judges (one chief justice and seven other judges).

  Year	Judges
  1956	Ten
  1960	Thirteen
  1977	Seventeen
  1986	Twenty-five
  2008	Thirty
  2019	Thirty-three

• Judges are appointed by the President. The chief justice is appointed after consultation with Supreme Court and high court judges. Other judges are appointed after consultation with the chief justice and other judges.

• The Supreme Court has given different interpretations of the word 'consultation':

  • First Judges Case (1981): Consultation does not mean concurrence.
  • Second Judges Case (1993): Consultation means concurrence; the advice of the Chief Justice of India is binding, after consulting two seniormost colleagues.
  • Third Judges Case (1998): Consultation requires 'consultation of plurality judges'; the Chief Justice must consult a collegium of four seniormost judges.

• 99th Constitutional Amendment Act of 2014: It was introduced with the National Judicial Appointments Commission Act of 2014 to replace the collegium system. In 2015, the Supreme Court declared both as unconstitutional, reinstating the collegium system.

• From 1950 to 1973, the seniormost judge was appointed as Chief Justice of India. This convention was violated in 1973 and 1977. The Second Judges Case (1993) curtailed this discretion, ruling the seniormost judge should be appointed.

Qualifications, Oath, and Salaries

• Qualifications for a Supreme Court judge:

  • Citizen of India.
  • Judge of a High Court for five years, or advocate of a High Court for ten years, or a distinguished jurist.

• No minimum age is prescribed.

• Before entering office, a judge must make an oath or affirmation before the President.

• Oath includes swearing:

  • True faith and allegiance to the Constitution of India.
  • Upholding the sovereignty and integrity of India.
  • Faithfully performing duties without fear or favor.
  • Upholding the Constitution and laws.

• Salaries, allowances, privileges, leave, and pension are determined by Parliament.

• They cannot be varied to their disadvantage after appointment, except during a financial emergency.

• In 2018, the Chief Justice's salary increased to ₹2.80 lakh per month, and judges' to ₹2.50 lakh per month.

• Retired chief justices and judges receive 50% of their last drawn salary as pension.

Tenure and Removal

• The Constitution has not fixed the tenure of a judge of the Supreme Court.

  • A judge holds office until 65 years of age.
  • A judge can resign by writing to the President.
  • A judge can be removed by the President on the recommendation of Parliament.

• Removal:

  • A judge can be removed by the President after an address by Parliament in the same session.
  • The address must be supported by a special majority in each House.
  • Grounds for removal: proved misbehavior or incapacity.

• The Judges Enquiry Act (1968) regulates the removal procedure:

  1. A removal motion signed by 100 (Lok Sabha) or 50 (Rajya Sabha) members is given to the Speaker/Chairman.
  2. The Speaker/Chairman may admit or refuse the motion.
  3. If admitted, a three-member committee investigates the charges.
  4. The committee consists of: (a) a Supreme Court chief justice or judge, (b) a high court chief justice, and (c) a distinguished jurist.

• No Supreme Court judge has been impeached so far.

Acting, Ad Hoc, and Retired Judges

• Acting Chief Justice: The President can appoint a Supreme Court judge as Acting Chief Justice of India when:

  1. The office of Chief Justice of India is vacant.
  2. The Chief Justice of India is temporarily absent.
  3. The Chief Justice of India is unable to perform their duties.

• Ad hoc Judge: When there is a lack of quorum, the Chief Justice of India can appoint a High Court judge as an ad hoc judge of the Supreme Court temporarily, after consulting with the concerned High Court's chief justice and with the President's consent.

• Retired Judge: The Chief Justice of India can request a retired judge of the Supreme Court or a High Court to act as a Supreme Court judge for a temporary period, with the President's consent and the person's consent.

Seat and Procedure

• Delhi is declared as the seat of the Supreme Court. However, the Chief Justice of India can appoint other places as the seat with the President's approval.

• The Supreme Court makes rules for regulating practice and procedure, with the President's approval.

• Constitutional cases or references under Article 143 are decided by a Bench of at least five judges. All other cases are decided by single judges and division benches.

• Judgments are delivered in open court and are by majority vote; dissenting judges can give dissenting opinions.

Independence of Supreme Court

• The Constitution includes provisions to ensure the Supreme Court's independent functioning:

  1. Mode of Appointment: Judges are appointed by the President in consultation with the judiciary.
  2. Security of Tenure: Judges can be removed only in the manner and on the grounds mentioned in the Constitution.
  3. Fixed Service Conditions: Salaries, allowances, and privileges cannot be changed to the judges' disadvantage after their appointment, except during a financial emergency.
  4. Expenses Charged on Consolidated Fund: Salaries, allowances, pensions, and administrative expenses are charged on the Consolidated Fund of India and are non-votable by the Parliament.
  5. Conduct of Judges cannot be Discussed: The Constitution prohibits discussion in Parliament or State Legislature regarding the conduct of judges, except during an impeachment motion.
  6. Ban on Practice after Retirement: Retired judges are prohibited from pleading or acting in any Court or before any authority in India.
  7. Power to Punish for its Contempt: The Supreme Court can punish for its contempt, maintaining its authority and dignity.
  8. Freedom to Appoint its Staff: The Chief Justice of India can appoint officers and servants without executive interference and prescribe their service conditions.
  9. Its Jurisdiction cannot be Curtailed: The Parliament cannot curtail the jurisdiction and powers of the Supreme Court but can extend them.

Jurisdiction and Powers of Supreme Court

The Constitution confers extensive jurisdiction and vast powers to the Supreme Court.

1. Original Jurisdiction:

   • The Supreme Court decides disputes between different units of the Indian Federation.

   • Exclusive original jurisdiction covers disputes:

     • Between the Centre and one or more states.
     • Between the Centre and any state or states on one side and one or more other states on the other side.
     • Between two or more states.

   • The dispute must involve a legal right. Political questions are excluded.

   • Exceptions:

     • Disputes arising out of pre-Constitution treaties or agreements.
     • Inter-state river water disputes.
     • Matters referred to the Finance Commission.
     • Adjustment of certain expenses and pensions between the Centre and the states.

2. Writ Jurisdiction:

   • The Supreme Court is the guarantor and defender of the fundamental rights of the citizens.

   • The Supreme Court is empowered to issue writs including habeas corpus, mandamus, prohibition, quo warranto and certiorari.

   • The Supreme Court has original jurisdiction in the sense that an aggrieved citizen can directly go to the Supreme Court.

   • The writ jurisdiction of the Supreme Court is concurrent with high courts jurisdiction.

   • The Supreme Court can issue writs only for the enforcement of the Fundamental Rights and not for other purposes.

3. Appellate Jurisdiction:

   • The Supreme Court hears appeals against the judgments of the High Courts.
   • The Supreme Court enjoys a wide appellate jurisdiction which can be classified under four heads:
     • Appeals in constitutional matters
     • Appeals in civil matters
     • Appeals in criminal matters
     • Appeals by special leave

4. Advisory Jurisdiction:

   • The Constitution authorizes the President to seek the opinion of the Supreme Court in the two categories of matters:
     • On any question of law or fact of public importance which has arisen or which is likely to arise.
     • On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instrument, which is excluded from the original jurisdiction of the Supreme Court.
   • The Supreme Court may tender or may refuse to tender its opinion to the President.
   • In the second case, the Supreme Court 'must' tender its opinion to the President.
   • So far, the President has made fifteen references to the Supreme Court under its advisory jurisdiction (also known as consultative jurisdiction).

5. A Court of Record:

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

     • The judgements, proceedings and acts of the Supreme Court are recorded for perpetual memory and testimony.
     • The Supreme Court has the power to punish for contempt of itself but also of high courts, subordinate courts and tribunals functioning in the entire country.

   • Under the Act, a contempt of court is punishable with simple imprisonment for a term upto six months or with fine upto 2,000 or with both.

6. Power of Judicial Review:

   • 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.

   • On examination, if they are found to be violative of the Constitution (ultra-vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the Supreme Court.

7. Review Jurisdiction:

   • The Supreme Court has power to review any judgement pronounced or order made by it.

   • A review petition has to be filed within thirty days from the date of the judgement or order sought to be reviewed.

   • A review petition is allowed on the following grounds:

     • Discovery of new and important matter or evidence.

     • Mistake or error apparent on the face of the record.

     • Any other sufficient reason.

8. Constitutional Interpretation:

   • The Supreme Court is the ultimate interpreter of the Constitution.

   • While interpreting the constitution, the Supreme Court is guided by a number of doctrines.

9. Other Powers:

   • Besides the above, the Supreme Court has numerous other powers:

     • It decides the disputes regarding the election of the President and the vice-President.

     • It enquires into the conduct and behaviour of the chairman and members of the UPSC or SPSC or JSPSC on a reference made by the President.

     • It is authorised to withdraw the cases pending before the high courts and dispose them by itself.

     • Its law is binding on all courts in India.

     • It has power of judicial superintendence and control over all the courts and tribunals functioning in the entire territory of the country.

Judicial Review of the Ninth Schedule

• Article 31B saves the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the Fundamental Rights.

• Article 31B along with the Ninth Schedule was added by the 1st Constitutional Amendment Act of 1951.

• Kesavananda Bharati case (1973), the Supreme Court rules that the acts and regulations that are included in the Ninth Schedule are open to challenge on the grounds of being violative of the basic structure of the constitution.