The Supreme Court

In respect of its judicial system, the India Constitution makes a fundamental departure from the federal Constitutions of the USA and Australia. Instead of having a dual system of judiciary India has opted for a unified and single judiciary. The judiciary is one of the three organs created by the Constitution, the other two being the Legislature and the Executive. The Judiciary exists to see that the laws made by the Legislature are intra-vires of the Constitution and that they are properly administered by the Executive and the authority is not exceeded or abused. It is only through the Judiciary that the powers of the different organs of the State are kept under control. It is the Judiciary, which maintains the supremacy of the Constitution in a federation.

At the apex of the Indian Judiciary stands the Supreme Court.  It has been set up under the Constitution to act as the custodian and the final interpreter of the Constitution and arbitrator of disputes between the component units and the Union and between the units themselves. It also acts as the protector of the fundamental rights of individuals guaranteed to them by the Constitution. It is the highest court of appeal in all fields of law-constitutional, civil and criminal.

The constitution, when it came into being, provided for a Chief Justice and not more than seven other Judges. It empowers the Parliament to prescribe by law a larger number of Judges. Under this power, the Parliament has now increased the number of Judges to twenty-six including the Chief Justice. At present, therefore, there is, a Chief Justice and not more than twenty-five other Judges.

Appointment of judges

The Judges of the Supreme Court are appointed by the President, The Chief Justice of the Supreme Court is appointed by the president with the consultation of such of the Judges of the Supreme Court and the High Court as he may deem necessary for the purpose. But in appointing other Judged, the President shall always consult the Chief Justice of India. He may consult the other Judges of the Supreme Court and High Court, as he may deem necessary.

Role of Chief Justice ofIndiainthe Appointment of Judges

In a Landmark judgment, the Supreme Court in the “Supreme Court Advocates-on Record association V. Union of India “(1993) case held that the Chief Justice of India’s opinion in the appointment of the Judges of the Supreme Court, and in the appointment and transfer of the Judges of the High Court shall enjoy primacy. By this judgment the Supreme Court over ruled its earlier judgment in SP. Gupta V. President of India (1980) in which it held that the opinion of the Chief Justice of India is not binding on the President.

The Court ruled that the process of appointment of Judged in an “integrated, participatory, consultative” exercise for selecting the best and most-suitable persons available. The Chief Justice of India is the sole authority to initiate the proposal for the appointment of the Judges of the Supreme Court and the transfer of the High Court Judges. He shares this role with the Chief Justices of the High Courts to fill up the vacancies in the High Courts. In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary symbolized by the view of the Chief Justice of India shall have primacy. No appointment of any Judge to the apex court or the High Courts can be made unless is in conformity with the Chief Justice’s opinion. However, if the President refers the opinion of the Chief Justice of India in this regard back to him the opinion expressed by the Chief Justice of India after consultation with two of the senior most Judges of the Supreme Court shall be accepted by the President as a healthy convention.

According to the Court, the Chief Justice of India’s opinion has not mere primacy but is the determinative factor in the matter of transfer of high Court Judges and Chief Justices of the High Courts.

While the Chief Justice of India is expected to consult his two senior most colleagues in the appointment of Judges to the apex court, he is expected to take into account the view of his colleagues conversant with the affairs of a particular High Court in recommending appointments there. The Chief Justice of India may also seek the opinion of a High Court Judge of Chief Justice of High Courts. Such opinions must be sought in writing.

Qualifications for Appointment asa Judge ofthe Supreme Court

A person to be qualified for appointment as a Judge of the Supreme Court must

(a)     Be a citizen of India, and

(b)     Have been a Judge of a High Court or two or more such courts in succession for at least five years 

(c)     Have been an Advocate of a High Court or two or more such courts in succession for at least ten years or

(d)     A distinguished jurist in the opinion of the President.

Tenure and Salary

A Judge of the Supreme Court vacates his office on attaining the age of sixty-five years or by resignation addressed to the President or by removal by the President upon a resolution passed by both Houses of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting on the ground of proved misbehavior or incapacity.

The Chief Justice of India draws a salary or Rs. 1,00,000 and other Judges Rs. 90,000 per month. In addition to salary they are eligible for allowances and a rent-free official accommodation.

Appointment of Acting Chief Justice

When the Office of the Chief Justice of India is vacant or when the Chief Justice 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 four the purpose.

Appointment ofAdhoc Judges

If at any time there is a lack of a quorum of the Judges of the Supreme Court to    held or continue other session in the Court, the Chief Justice of India may with the previous consent of the President and after consultation with the Chief Justice of the High Court concern ed, request in writing the attendance at the sittings of the court as an Adhoc Judge, for such periods may be necessary, of a Judge of a High Court duty qualified for appointment as a Judge of the Supreme Court.

Attendance of Retired Judges at Sittings ofthe Supreme Court

The Chief Justice of India with the previous consent of the President may request retired Judge of the Supreme Court or Federal Court or a retired Judge of a High Court which is duly qualified to be appointed as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court.

Removal of a judge of the Supreme Court

The Constitution under Art. 124 (4) provides that a judge of the Supreme Court can be removed by the President after an address by each House of Parliament supported by majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. Further Parliament under Art. 124(5) may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or in capacity of a Judge. Accordingly Parliament in 1968 passed Judges (Inquiry) Act. Under this Act, a motion seeking the removal of a Judge can be preferred before either House of Parliament. If it is to be introduced in the Lok Sabha it should be signed by not less than 100 members of Lok Sabha and in Rajya Sabha  by not less than 50 members of Rajya Sabha. The motion can be moved only after the expiry of a 14-day notice served on the Judge. After being properly introduced, the presiding officer of that House shall appoint a three-member Judicial Committee to inquire into and provide proof of the misbehavior or incapacity. The head of the Judicial Committee shall be a serving judge of the Supreme Court and the High Court and the third member may be an eminent jurist. The Judge in question has the right to defend himself or through his counsel before the Judicial committee. The committee submits its report to the presiding officer of the House in which the motion has been introduced. The Parliament may or may not act upon the report of the judicial committee. However, if the Judicial Committee failed to establish proof of misbehavior or incapacity, Parliament cannot take up the motion. If the motion is passed by the originating House with the required majority it moves to the other House which should also pass the motion with the same majority. Upon presented to the President in the same session of Parliament in which the address has been passed the President shall pass an order for the removal of the Judge in question.

Independence of Supreme Court judges

The hallmark of any judiciary is impartiality. Unless the independence of Judges is secured, impartiality of the judiciary cannot be assured. The independence of the Judges of the Supreme Court is sought to be secured by the Constitution in a number of ways;

(a)     The President shall have to consult the Chief Justice of India before appointing a person as a Judge of the Supreme Court

(b)     Once appoint, a Judge of the Supreme the basis of a resolution passed by both the House of the Parliament with a majority of the total membership and a majority of not less than two-thirds of the members presented voting in each House, on ground of proved misbehavior or incapacity of the Judge in question.

(c)     After retirement, a person who held office as a Judge of the Supreme Court is prohibited from practicing or acting as a Judge in any court or before any authority in India. The exception is that the Chief Justice of India may appoint a retired Judge or the Supreme Court to act as an Adhoc Judge of the Supreme Court.

(d)     The salaries and allowances of the Judges of the Supreme Court and the administrative expenses of the court are charged on the Consolidated Fund of India and are not subject to the vote of the Parliament.

(e)     The salaries and allowances of the Judges of the Supreme Court cannot be varied to their disadvantage except during a financial emergency.

(f)      The conduct of a Judge of the Supreme Court cannot be discussed in the Parliament, except on the resolution for the removal of a Judge.

Jurisdiction of the Supreme Court

The jurisdiction of the Supreme Court are five-fold viz., Original, writ, Appellate, Advisory and Revisory jurisdictions.

Original jurisdiction

 The original jurisdiction of the Supreme Court is purely federal in character, and it has the exclusive authority to decide any dispute involving a question of law or fact between (a) the Government of India and one or more States: or (b) between the Government of India and any State or States on one side and one or more sates on the other; or (c) between two or more States. However, according to the Constitution (Seventh Amendment) Act, 1956, the original jurisdiction of the Supreme Court does not extend to a dispute if it arises out of any provision of a treaty, agreement, covenant, management, sanad, or other similar instrument which has entered into or executed before 26th January, 1950, and has been continued in operation after that, or which provided that the said jurisdiction shall not extend to such a dispute.

Writ jurisdiction

Art. 32 confers jurisdiction on the Supreme Court to enforce the fundamental rights. Under this Article every individual has a right to move the Supreme Court directly by appropriate proceedings for the enforcement of his fundamental rights. The writ jurisdiction sometimes is referred to as Original Jurisdiction of the Supreme Court in the sense that an individual was the right to directly approach the Supreme Court for the enforcement of his fundamental rights without coming through a High Court by way of appeal. But in the strict sense Original jurisdiction related to the federal character of the Constitution only.

Appellate jurisdiction

The Appellate Jurisdiction of the Supreme Court is three-fold:

(a)     Constitutional. In constitutional matters, an appeal lies to the Supreme Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. If the High Court refuses to give the certificate, the Supreme Court may grant special leave or appeal if it is satisfied that the case does involve such a question.

(b)    Civil. In civil case, an appeal lies to the Supreme Court if a High Court certifies that the value of the subject matter of the dispute is not less then Rs. 20,000 and or that the case is fit for appeal to the Supreme Court. The appellate jurisdiction of the Court in civil cases can be enlarged if Parliament passes a law to that effect.

(c)    Criminal. In criminal cases, an appeal lies to the Supreme Court if the High Court (i) has on appeal reversed the order of acquittal of an accused and sentenced him on to death; or (ii) has withdrawn for trial before itself any case from any subordinate court and has in such trial convicted the accused and sentenced him to death; or (iii) certifies that the case is fit for appeal to the Supreme Court.

The appellate jurisdiction of the Supreme Court in criminal matters can be extended by Parliament subject to such conditions and limitations as may be specified therein.

The Supreme Court under Art, 136 enjoy the power of granting special leave to appeal from any judgment, decree, order or sentences in any cause or matter passed by any court or tribunal excepting court marshals.

Court of Record

1. The Supreme Court is a court of record

What this means is that its records are admitted to be of evidentiary value and cannot be questioned in any court

1. As a court of record, it also enjoys the power to punish for contempt of court

Advisory jurisdiction

One salient feature of the Supreme Court of India is its consultative role. Art, 143 of the Constitution provides for the advisory role of the Supreme Court. The President can refer to the Court either a question of law or a question of fact, provided that it is of public.

However, it is not compulsory for the court to give its advice. Further, the President is empowered to refer to the Supreme Court for its opinion dispute entered into or executed before the commencement of the Constitution. In such cases, it is obligatory for the Court, under the Indian Constitution, to give its opinion to the President.

Revisory jurisdiction

The Supreme Court under Art. 137 is empowered to review any judgment or order made by it with a view to removing any mistake or error that might have crept in the judgment or order. This means that even though all the judgments and orders passed by the Supreme Court are binding on all the courts of India, they are not binding on the Supreme Court.

The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2008

The Act revised the salaries of the judges with effect from January 1, 2006 as follows: (a) Chief Justice of India – from Rs 33,000/pm to Rs 1,00,000/pm; (b) Judge of Supreme Court – from Rs 30,000/pm to Rs 90,000/pm; (c) Chief Justice of High Court – from Rs 30,000/pm to Rs 90,000/pm; and (d) Judges of High Court – from Rs 26,000/pm to Rs 80,000/pm.

The Supreme Court (Number of Judges) Amendment Bill, 2008

The Bill increases the number of Judges in Supreme Court from 25 to 30 (excluding the Chief Justice of India).

The Judicial Standards and Accountability Bill, 2010

The Judicial Standards and Accountability Bill tries to lay down enforceable standards of conduct for judges.  It also requires judges to declare details of their and their family members' assets and liabilities.  Importantly, it creates mechanisms to allow any person to complain against judges on grounds of misbehaviour or incapacity. 

Highlights of the Bill

•       The Judicial Standards and Accountability Bill, 2010 requires judges to declare their assets, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. 

•       Judges will be required to declare their assets and liabilities, and also that of their spouse and children.

•       The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee.  Any person can make a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’.

•       A motion for removal of a judge on grounds of misbehaviour can also be moved in Parliament.  Such a motion will be referred for further inquiry to the Oversight Committee.

•       Complaints and inquiries against judges will be confidential and frivolous complaints will be penalized.

•       The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to the President.

The judicial appointments commission bill, 2013

Highlights of the Bills

The Constitution (120th Amendment) Bill, 2013 amends provisions related to appointment and transfer of judges to the higher judiciary.

It establishes a Judicial Appointments Commission (JAC) to make recommendations to the President on appointment and transfer of judges to the higher judiciary.  It empowers Parliament to pass a law providing for the composition, functions and procedures of the JAC.

The JAC Bill, 2013 states that the JAC shall comprise: (i) the Chief Justice of India (CJI), (ii) two other senior most judges of the Supreme Court (SC), (iii) the Union Minister for Law and Justice, and (iv) two eminent persons to be nominated by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.

The functions of the JAC include making recommendations for appointments of the CJI, SC judges, Chief Justice and other High Court (HC) judges, and transfer of HC judges.

Key Issues and Analysis

The current method of appointments has been examined by various bodies including the Law Commission and the Parliamentary Standing Committee.  They vary in the role of the executive and judiciary in making appointments of judges.

The composition of the JAC has not been included in the Constitution, but has been left for Parliament to decide by law.  This implies that modifying the composition of the JAC would not require a constitutional amendment, but may be altered by a simple majority in Parliament.

The Standing Committee examining the JAC Bill has recommended that (i) the JAC be composed of three eminent persons, (ii) the broad parameters for short listing of candidates for HC appointments be laid down in the Bill, and (iii) the centre also consider the setting up of state level appointments commissions comprising the Chief Minister, the Chief Justice of HC and the Leader of Opposition.

The Constitution (120th Amendment) Bill, 2013, provides for setting up of a Judicial Appointments Commission by inserting Article 124 (A) in the Constitution and amending Articles 124(2), 217(1) and 222(1). The structure and functions of the proposed commission are provided in the JAC Bill.

The parliamentary panel had said: “The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding the Executive entirely in the collaborative and consultative exercise for appointment of judges to a Bench of the higher judiciary. Because of its inherent deficiencies in the collegium, as many as 275 posts of judges in various High Courts are lying vacant, which has a direct bearing on the justice delivery system and thereby affecting the judiciary.”

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