Supreme Court of India

In India, the qualifications for judges of the Supreme Court are outlined in Article 124 of the Constitution.

According to the Constitution, a person can be appointed as a judge of the Supreme Court if they meet the following qualifications:

• Citizen of India: The person must be a citizen of India.
• Legal Education: The person must have been a judge of a high court for at least five years or an advocate of a high court for at least ten years or should be a distinguished jurist in the opinion of the President of India.

It is important to note that these qualifications only pertain to the appointment of a judge of the Supreme Court and do not guarantee an appointment. 

1. The Supreme Court of India consists of a Chief Justice and 33 other judges.
2. The judges are appointed by the President of India on the recommendation of the Chief Justice of India and other senior judges.
3. The Supreme Court has both original and appellate jurisdiction.
4. The Supreme Court has original jurisdiction in cases that involve disputes between the Government of India and one or more States, or between two or more States.
5. The Supreme Court has appellate jurisdiction over judgments and orders of the High Courts and other subordinate courts.
6. The administration of the Supreme Court is overseen by the Chief Justice of India.
7. The Chief Justice is assisted by a team of senior judges who form the administrative committee of the Supreme Court.
8. The Supreme Court has a Registrar, who is responsible for the administration of the Court.
9. The Registrar is assisted by a team of officers and staff members who work in various departments, such as the Registry, Library, and Accounts.
10. The Supreme Court also has a Bar Association, which represents the interests of the lawyers who practice in the Court.
11. The appointment of judges to the Supreme Court is carried out by a body known as the Collegium.
12. The Collegium consists of the Chief Justice of India and the four senior-most judges of the Supreme Court.
13. The Collegium has the power to recommend the appointment and transfer of judges to the Supreme Court and the High Courts.
14. The process of recommending judges to the Supreme Court begins with the initiation of a proposal by the Chief Justice of India.
15. The proposal is then discussed and considered by the Collegium, which evaluates the suitability of the candidate based on various factors.
16. Once the Collegium reaches a decision, it sends its recommendations to the government for approval.
17. The government can either accept or reject the recommendations.
18. In case of rejection, the Collegium can reconsider the recommendation and send it back to the government for approval.
19. The appointment process of judges to the Supreme Court has been subject to criticism in the past for lack of transparency.
20. The Supreme Court has taken various steps to increase transparency and accountability in the appointment process.

On the 28th of January, 1950, two days after India became a Sovereign Democratic Republic, the Supreme Court came into being. It is the apex court of the land.

Appointment of Judges

• The judges of the SC are appointed by the President
• The chief justice is appointed by the president after consultation with such judges of the SC and high court as he deems necessary
• The other judges of the SC are appointed by President after consultation with the chief justice and such other judges of the SC.
• The consultation with chief justice is obligatory in the case of appointment of a judge other than Chief Justice.

Qualifications of Judges

A person to be appointed as a judge of the Supreme Court should have the following qualifications:

1. He should be a citizen of India.
2. He should have been a judge of a High Court (or high courts in succession) for five years; or  He should have been an advocate of a High Court (or High Courts in succession) for ten years; or (c) He should be a distinguished jurist in the opinion of the president.

From the above, it is clear that the Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court.

Oath or Affirmation

A person appointed as a judge of the Supreme Court, before entering upon his Office, has to make and subscribe an oath or affirmation before the President, or some person appointed by him for this purpose.

Tenure of 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:

1. He holds office until he attains the age of 65 years.
2. He can resign his office by writing to the president.
3. He can be removed from his office by the President on the recommendation of the Parliament.

Removal of Judges

A judge of the Supreme Court can be removed from his Office by an order of the president. The President can issue the removal order only after an address by Parliament has been presented to him in the same session for such removal.

The address must be supported by a special majority of each House of Parliament (i.e. a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting).

The grounds of removal are two—proved misbehaviour or incapacity.

Salaries and Allowances

The salaries, allowances, privileges, leave and pension of the judges of the Supreme Court are determined from time to time by the Parliament. They cannot be varied to their disadvantage after their appointment except during a financial emergency.

Acting Chief Justice

The President can appoint a judge of the Supreme Court as an acting Chief Justice of India when:

1. The office of Chief Justice of India is vacant; or
2. The Chief Justice of India is temporarily absent; or
3. The Chief Justice of India is unable to perform the duties of his office.

Ad hoc Judge

When there is a lack of quorum of the permanent judges to hold or continue any session of the Supreme Court, the Chief Justice of India can appoint a judge of a High Court as an ad hoc judge of the Supreme Court for a temporary period.

He can do so only after consultation with the chief justice of the High Court concerned and with the previous consent of the president. The judge so appointed should be qualified for appointment as a judge of the Supreme Court.

It is the duty of the judge so appointed to attend the sittings of the Supreme Court, in priority to other duties of his office and while so attending, he enjoys all the jurisdiction, powers and privileges (and discharges the duties) of a judge of the Supreme Court.

Retired Judges

At any time, the chief justice of India can request a retired judge of the Supreme Court or a retired judge of a high court (who is duly qualified for appointment as a judge of the Supreme Court) to act as a judge of the Supreme Court for a temporary period.

He can do so only with the previous consent of the president and also of the person to be so appointed. Such a judge is entitled to such allowances as the president may determine.

He will also enjoy all the jurisdiction, powers and privileges of a judge of Supreme Court. But, he will not otherwise be deemed to be a judge of the Supreme Court.

Q. With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

(a) The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.

(b) The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.

(c) In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

(d) State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

(UPSC Prelims 2020)

Answer: B

Explanation:  Article 142 of Constitution of India deals with Enforcement of orders of the Supreme Court. It states that the Apex Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing “complete justice” in any case pending before it.

Such orders of the Supreme Court are enforceable throughout the territory of India as prescribed by any law made by Parliament or order of the President of India.

So, what if you are completely unware of Article 142?

Still you have to attempt the question.

Eliminate option a: Any one can challenge the decision of Election Commission in the court.

Eliminate option c: President of India can declare Financial Emergency only after the recommendation from the Cabinet.

Eliminate option d: There is no such provision, even in case of matters falling under concurrent list, the State Legislature is free to make laws.

The Constitutional cases or references made by the President under Article 143 are decided by a Bench consisting of at least five judges.

Jurisdiction of Supreme Court

1. Original Jurisdiction

Any dispute between:

(a) The Centre and one or more states; or

(b) The Centre and any state or states on one side and one or more states on the other; or

(c) Between two or more states.

In the above federal disputes, the Supreme Court has exclusive original jurisdiction. Exclusive means, no other court can decide such disputes and original means, the power to hear such disputes in the first instance, not by way of appeal.

Note: The dispute between Centre and UTs are not covered under original jurisdiction.

2. Writ Jurisdiction

The Constitution has constituted the Supreme Court as 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-warrento and certiorari for the enforcement of the fundamental rights of an aggrieved citizen.

In this regard, the Supreme Court has original jurisdiction in the sense that an aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal. 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. It means, when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.

There is also a difference between the writ jurisdiction of the Supreme Court and that of the high court. The Supreme Court can issue writs only for the enforcement of the Fundamental Rights and not for other purposes.

The high court, on the other hand, can issue writs not only for the enforcement of the fundamental rights but also for other purposes. It means that the writ jurisdiction of the high court is wider than that of the Supreme Court.

But, the Parliament can confer on the Supreme Court, the power to issue writs for other purposes also.

3. Appellate Jurisdiction

The Supreme Court is primarily a court of appeal and hears appeals against the judgement of the lower courts.

(a) Appeals in constitutional matters.

(b) Appeals in civil matters.

(c) Appeals in criminal matters.

(d) Appeals by special leave.

(a) Constitutional Matters: In the constitutional cases, an appeal can be made to the Supreme Court against the judgement of a high court if the high court certifies that the case involves a substantial question of law that requires the interpretation of the Constitution.

(b) Civil Matters: In civil cases, an appeal lies to the Supreme Court from any judgement of a high court if the high court certifies that the case involves a substantial question of law of general importance.

(c) Criminal Matters: The Supreme Court hears appeals against the judgement in a criminal proceeding of a high court if the high court—

(1) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or

(ii) has taken before itself any case from any subordinate court and convicted the accused person and sentenced him to death; or

(iii) Certifies that the case is a fit one for appeal to the Supreme Court.

4. Advisory Jurisdiction

The Constitution (Article 143) authorises the president to seek the opinion of the Supreme Court in the two categories of matters:

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

(b) On any dispute arising out of any pre-constitution treaty, agreement.

In the first case, the Supreme Court may tender or may refuse to tender its opinion to the president.

However, in the second case, the Supreme Court ‘must’ tender its opinion to the president.

In both the cases, the opinion expressed by the Supreme Court is only advisory and not a judicial pronouncement.

Hence, it is not binding on the president, he may follow or may not follow the opinion. However, it facilitates the government to have an authoritative legal opinion on a matter to be decided by it.

So far (2013), the President has made fifteen references to the Supreme Court under its advisory jurisdiction (also known as consultative jurisdiction).

5. A Court of Record

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. They are recognised as legal precedents and legal references.

(b) 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.

In 1991, the Supreme Court has ruled that it has power to punish for contempt not only of itself but also of high courts, subordinate courts and tribunals functioning in the entire country.

Contempt of court may be civil or criminal. Civil contempt means wilful disobedience to any judgement, order, writ or other process of a court or wilful breach of an undertaking given to a court.

Criminal contempt means the publication of any matter or doing an act which— (1) scandalises or lowers the authority of a court; or (ii) prejudices or interferes with the due course of a judicial proceeding; or (iii) interferes or obstructs the administration of justice in any other manner.

However, innocent publication and distribution of some matter, fair and accurate report of judicial proceedings, fair and reasonable criticism of judicial acts and comment on the administrative side of the judiciary do not amount to contempt of court.

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. Consequently, they cannot be enforced by the Government.

Judicial review is needed for the following reasons:

(a) To uphold the principle of the supremacy of the Constitution.

(b) To maintain federal equilibrium (balance between Centre and states).

(c) To protect the fundamental rights of the citizens.

Though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, the provisions of several articles explicitly confer the power of judicial review on the Supreme Court. The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court on the following three grounds:

(a) it infringes the Fundamental Rights (Part III),

(b) it is outside the competence of the authority which has framed it, and

(c) it is repugnant to the constitutional provisions.

7. Other Powers

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

(a) It decides the disputes regarding the election of the president and the vice-president. In this regard, it has the original, exclusive and final authority.

(b) It enquires into the conduct and behavior of the chairman and members of the Union Public Service Commission on a reference made by the president. If it finds them guilty of misbehaviour, it can recommend to the president for their removal. The advice tendered by the Supreme Court in this regard is binding on the President.

(c) It has power to review its own judgement or order. Thus, it is not bound by its previous decision and can depart from it in the interest of justice or community welfare.

In brief, the Supreme Court is a self-correcting agency. For example, in the Kesavananda Bharati case (1973), the Supreme Court departed from its previous judgement in the Golak Nath case (1967).

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

(e) Its law is binding on all courts in India. Its decree or order is enforceable throughout the country. All authorities (civil and judicial) in the country should act in aid of the Supreme Court.

(f) It is the ultimate interpreter of the Constitution. It can give final version to the spirit and content of the provisions of the Constitution.

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

The Supreme Court’s jurisdiction and powers with respect to matters in the Union list can be enlarged by the Parliament. Further, its jurisdiction and powers with respect to other matters can be enlarged by a special agreement of the Centre and the states.

National Judicial Appointments Commission: National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India.

The Commission was established by amending the Constitution of India through the ninety-ninth constitution amendment vide the Constitution (Ninety-Ninth Amendment) Act, 2014.

The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme Court.

The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India Pranab Mukherjee on 31 December 2014. The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.

Constitution Bench of Supreme Court by 4:1 Majority upheld the collegium system and struck down the NJAC as unconstitutional.

A new article, Article 124A, (which provides for the composition of the NJAC) has been inserted into the Constitution.

Composition of NJAC:  As per the amended provisions of the constitution, the Commission would have consisted of the following six persons: Chief Justice of India (Chairperson, ex officio), Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio The Union Minister of Law and Justice, two eminent persons These (two) eminent persons would have been nominated by a committee consisting of the Chief Justice of India, Prime Minister of India.

Functions of the Commission

As per the amended constitution, the functions of the Commission would have included the following:

1. Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts.
2. Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
3. Ensuring that the persons recommended are of ability, merit and other criteria mentioned in the regulations related to the act.

The Collegium system

This is one where the Chief Justice of India and a forum of four senior most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases.

Recently the collegium system has recommended the names of judges to be appointed in the higher judiciary, but the government has delayed the clearance of proposal citing that the delay is from high court.

Supreme Court has said that the independence of judiciary is the basis structure of the constitution.