16.2.1 Introduction: Apex Court of India
16.2.1.1 Inauguration & Succession
The Supreme Court of India formally commenced its operations on January 28, 1950, just two days after the Constitution came into force.
It succeeded the Federal Court of India, established under the Government of India Act, 1935, and also took over the functions of the Judicial Committee of the Privy Council (in London) as the highest court of appeal under British rule. The adoption of a single, integrated judicial system with the Supreme Court at its head was a deliberate choice by the Constitution-makers, aiming for uniformity in law and judicial administration across India.
16.2.1.2 Core Roles & Functions
-
Guardian of the Constitution: Final interpreter and protector of the Constitution, ensuring adherence to constitutional principles through Judicial Review.
-
Guarantor of Fundamental Rights: Under Article 32, citizens can directly approach the SC for enforcement of their Fundamental Rights.
-
Highest Court of Appeal: Ultimate court for appeals from High Courts and other tribunals, ensuring consistency in justice.
-
Federal Court: Resolves disputes between the Centre and States or between States, upholding the federal structure.
16.2.2 Organisation of the Supreme Court (Article 124)
16.2.2.1 Composition
Originally, the Supreme Court consisted of a Chief Justice and seven other judges (8 judges).
The Parliament, by law, has the power to increase the number of judges (Article 124(1)).
Current Sanctioned Strength: 34 judges (1 Chief Justice of India + 33 other Judges), last increased by the Supreme Court (Number of Judges) Amendment Bill, 2019.
16.2.2.2 Seat of Supreme Court (Article 130)
The Constitution declares Delhi as the principal seat of the Supreme Court.
However, Article 130 provides that the Chief Justice of India may, with the previous approval of the President, appoint other place or places as the seat of the Supreme Court.
This provision is discretionary and not mandatory. No such appointment has ever been made, despite persistent demands for regional benches.
16.2.3 Appointment of Judges (Article 124(2))
Appointment Process
-
CJI Appointment: Appointed by the President after consultation with such judges of SC and HCs as President deems necessary.
-
Other SC Judges: Appointed by the President after consultation with CJI and such other judges of SC and HCs as President deems necessary. Consultation with CJI is obligatory.
-
Convention for CJI: The senior-most judge of the Supreme Court considered fit to hold the office is appointed as CJI (with rare, controversial exceptions in the 1970s).
Evolution of Collegium System
The Supreme Court ruled that "consultation" in Article 124(2) did not mean "concurrence". The President was not bound by the Chief Justice's recommendation. This effectively gave primacy to the Executive in judicial appointments.
Overruled the 1981 judgment, holding that "consultation" indeed meant "concurrence". The CJI's recommendation was given primacy. The Court stated the CJI should consult his two senior-most SC colleagues, giving birth to the "Collegium System". This established judicial primacy.
A Presidential reference clarified that the CJI's opinion must be of a Collegium comprising the CJI and his four senior-most SC judges. If two or more judges give an adverse opinion, the CJI should not send the recommendation. This solidified the Collegium system.
National Judicial Appointments Commission (NJAC) Episode
Parliament passed these acts to replace the Collegium with a six-member NJAC (CJI, two senior-most SC judges, Union Law Minister, two eminent persons). It aimed to bring more transparency and accountability to appointments.
The Supreme Court struck down both the 99th Amendment and the NJAC Act as unconstitutional, holding they violated the independence of the judiciary (a basic feature of the Constitution). The Collegium system was consequently revived.
Current System & MoP
Currently, Supreme Court (and High Court) judges are appointed by the President of India based on the recommendation of the Collegium.
The Collegium's recommendations are generally binding on the government, which can ask for reconsideration once. If reiterated, the government is usually bound.
Memorandum of Procedure (MoP): Drawn up after the Third Judges Case. After the NJAC verdict, the SC asked the government to revise the MoP for transparency and accountability. The revised MoP remains a subject of ongoing discussion and disagreement.
Convention of Seniority for CJI Appointment
By convention, the senior-most judge of the Supreme Court is appointed as the Chief Justice of India. This convention was violated twice in the 1970s (Justice A.N. Ray in 1973, Justice M.U. Beg in 1977), leading to significant controversy. Since then, it has largely been adhered to.
16.2.4 Qualifications for Supreme Court Judge (Article 124(3))
Eligibility Criteria
-
Must be a Citizen of India.
-
Has been a Judge of a High Court (or HCs in succession) for at least 5 years; OR
-
Has been an Advocate of a High Court (or HCs in succession) for at least 10 years; OR
-
Is, in the opinion of the President, a distinguished jurist.
Note: No minimum age is prescribed. While the 'distinguished jurist' provision exists, no one has ever been appointed to the Supreme Court under this category.
16.2.5 Oath or Affirmation (Article 124(6))
Administered by the President of India
Before entering office, every Supreme Court judge must make and subscribe an oath or affirmation, administered by the President or a person appointed by him. The oath's form is prescribed in the Third Schedule of the Constitution, affirming allegiance to the Constitution and upholding the laws.
16.2.6 Tenure and Removal of Supreme Court Judges
Tenure (Article 124(2))
A Supreme Court judge holds office until they attain the age of 65 years.
Any question regarding the age of a judge is decided by the President after consultation with the CJI.
A judge can resign from their office by writing a letter addressed to the President.
Removal (Article 124(4))
A judge can be removed by an order of the President, but only after an address by Parliament has been presented to the President in the same session for such removal.
Special Majority: The address must be supported by a special majority of each House of Parliament (majority of total membership AND 2/3rd present and voting).
Grounds: 'Proved misbehaviour' or 'incapacity'.
This is an extremely difficult and cumbersome procedure, ensuring judicial independence. No SC judge has ever been successfully removed through this process.
Removal Procedure (Judges (Inquiry) Act, 1968)
(100 LS / 50 RS members)
(CJI/SC Judge, HC CJ, Distinguished Jurist)
Notable Cases
Justice V. Ramaswami (1991-93)
Impeachment proceedings initiated. Inquiry committee found him guilty. However, the motion failed in the Lok Sabha as the ruling Congress party abstained from voting. First and only time impeachment proceedings reached this stage for an SC judge.
Justice Dipak Misra (2018)
A removal motion was introduced in the Rajya Sabha against the then CJI Dipak Misra but was rejected by the Chairman on procedural grounds, without reaching the inquiry committee stage.
16.2.7 Salaries and Allowances (Article 125)
Protection from Financial Manipulation
Salaries, allowances, and privileges are determined by Parliament by law. Crucially, they cannot be varied to their disadvantage after appointment, except during a Financial Emergency (Article 360).
The salaries, allowances, pensions, and administrative expenses of the Supreme Court are charged on the Consolidated Fund of India (CFI). This means they are non-votable by Parliament, though they can be discussed, further safeguarding judicial independence.
16.2.8 Acting, Ad hoc, and Retired Judges
Acting Chief Justice (Art 126)
The President can appoint a Supreme Court judge as the Acting CJI if the office of CJI is vacant, or if the Chief Justice is unable to perform duties due to absence or otherwise.
Ad hoc Judges (Art 127)
If there's a lack of quorum for an SC session, the CJI, with President's consent, can request a qualified High Court judge to attend as an ad hoc judge. The CJI must also consult the concerned HC CJ.
Ad hoc judges enjoy all SC judge privileges while attending sittings.
Retired Judges (Art 128)
The CJI, with President's consent, can request a retired SC or qualified HC judge to act as an SC judge temporarily. They get allowances determined by the President and enjoy SC judge privileges, but are not deemed a judge otherwise.
16.2.9 Independence of Supreme Court
The Constitution meticulously safeguards the independence of the Supreme Court to ensure its impartiality and efficacy in upholding the rule of law. Key provisions include:
-
Mode of Appointment: Collegium system minimizes executive influence.
-
Security of Tenure: Fixed tenure, difficult removal process (Art 124(2), (4)).
-
Fixed Service Conditions: Cannot be varied to disadvantage (Art 125).
-
Expenses Charged on CFI: Non-votable by Parliament (Art 125).
-
Conduct Not Discussed in Legislature: Except during impeachment (Art 121).
-
Ban on Practice After Retirement: Prevents future favour-seeking (Art 124(7)).
-
Power to Punish for Contempt: Maintains authority and dignity (Art 129).
-
Freedom to Appoint Staff: Administrative autonomy (Art 146).
-
Jurisdiction Cannot be Curtailed: Parliament cannot reduce constitutional powers.
-
Separation from Executive: Directive Principle (Art 50) reinforcing independence.
16.2.10 Jurisdiction and Powers of the Supreme Court
16.2.10.1 Court of Record (Article 129)
(1) Evidentiary Value: Its records and proceedings are preserved as evidence and cannot be questioned in subordinate courts.
(2) Contempt Power: Has the power to punish for its own contempt (civil or criminal) to maintain its authority and dignity.
16.2.10.2 Original Jurisdiction (Article 131)
Exclusive jurisdiction in disputes:
- Between Government of India and one or more States.
- Between GoI and any State(s) on one side and other State(s) on the other.
- Between two or more States.
Prerequisite: Dispute must involve a question of law or fact on which a legal right depends. Excludes inter-state water disputes, FC matters, certain pre-Constitution treaties.
Original Jurisdiction for FRs (Article 32): SC also has original jurisdiction to enforce Fundamental Rights via writs (Habeas Corpus, Mandamus, etc.).
16.2.10.3 Writ Jurisdiction (Article 32)
Empowered to issue writs (Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto) for the enforcement of Fundamental Rights ONLY.
This power is concurrent with High Courts' writ jurisdiction (Article 226).
| Feature | SC (Art 32) | HC (Art 226) |
|---|---|---|
| Scope | Only for FRs | For FRs & "any other purpose" (wider) |
| Territorial | Throughout India (wider) | Within HC's territorial jurisdiction |
16.2.10.4 Appellate Jurisdiction
Appeal lies from HC judgment if HC certifies the case involves a substantial question of law as to the interpretation of the Constitution. If HC refuses, SC can grant special leave to appeal if satisfied.
Appeal lies from HC civil judgment if HC certifies: (i) case involves substantial question of law of general importance, AND (ii) SC decision is needed. (Monetary limit removed by 30th Amendment Act, 1972).
Appeal lies from HC criminal judgment if HC: reversed acquittal and sentenced to death; or withdrew case from subordinate court, convicted, and sentenced to death; or certifies case is fit for appeal (Art 134(1)(c)). Parliament can confer further powers (Art 134(2)).
This is a discretionary power. SC can grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed by any court or tribunal in India (except military tribunals/court martials). Used sparingly for grave injustice or general public importance.
16.2.10.5 Advisory Jurisdiction (Article 143)
President can seek SC opinion on:
- Question of law or fact of public importance: SC may or may not tender opinion. (e.g., Re Kerala Education Bill)
- Dispute arising out of pre-Constitution treaty, etc.: SC must tender opinion.
Nature of Opinion: Advisory, not binding on the President. Not a judicial pronouncement/judgment, thus not enforceable as law.
16.2.10.6 Power of Judicial Review
Power to examine constitutionality of legislative enactments and executive orders. If violative of Constitution, declared invalid (ultra vires).
Sources: Implicit in Articles 13, 32, 131-136, 141, 142, 226, 246, 254.
Affirmation: Basic Structure Doctrine
Affirmed in Kesavananda Bharati (1973). Judicial review itself is part of the basic structure (Minerva Mills, 1980).
| Aspect | India (procedure established by law) | USA (due process of law) |
|---|---|---|
| Scope | Legis. competence & procedure. Maneka Gandhi expanded to 'fair, just & reasonable' procedure. | Competence, procedure, AND fairness/justice/reasonableness. |
16.2.10.7 Other Powers
-
Withdraw & Transfer Cases (Art 139A): Withdraw from HCs, transfer between HCs/subordinate courts.
-
Law Binding (Art 141): Law declared by SC binding on all courts (Doctrine of Precedent).
-
Complete Justice (Art 142(1)): Power to pass any order necessary for "complete justice".
-
Review its own Judgments (Art 137): Power to review any judgment/order.
-
Curative Petition: (Rupa Ashok Hurra v. Ashok Hurra, 2002) allows review even after review petition dismissed to prevent miscarriage of justice.
-
President/VP Election Disputes (Art 71): Sole authority for disputes related to President/VP election.
-
Make Rules for Practice (Art 145): Regulate its own practice and procedure.
-
Inquires into UPSC Conduct (Art 317): On President's reference, can inquire into conduct of UPSC Chairman/members; recommendation binding.
16.2.11 Supreme Court Advocates
Senior Advocates
Designated by SC or HC based on ability, standing, and experience. Usually don't appear without an Advocate-on-Record.
Advocates-on-Record (AORs)
Only these advocates are entitled to file any matter or act for a party in the Supreme Court. Must qualify an SC examination.
Other Advocates
Can appear and argue cases in the Supreme Court but must be instructed by an Advocate-on-Record.
16.2.12 Current Issues and Debates
-
Pendency of Cases: Millions of cases pending, leading to delays in justice delivery.
-
Vacancies in Appointments: Significant vacancies contribute to pendency and executive-judiciary tussles.
-
Transparency in Collegium: Criticism for lack of transparency and defined criteria in appointments (MoP debate).
-
Regional Benches/National Court of Appeal: Demands to reduce SC's workload and improve access.
-
Judicial Activism vs. Overreach: Debate on judiciary's proactive role vs. stepping into executive/legislative domains.
-
Use of Technology: e-Courts, live streaming for efficiency and transparency.
-
Judicial Infrastructure: Inadequate infrastructure, especially for lower courts.
-
Post-retirement Appointments: Concerns about judges accepting government appointments immediately after retirement.
Recent Developments
Electoral Bond Scheme Verdict (Feb 2024)
A 5-judge Constitution Bench unanimously struck down the Electoral Bond Scheme as unconstitutional, violating citizens' right to information (Art 19(1)(a)). A significant assertion of judicial review.
Judgments on Article 370 (Dec 2023)
The Supreme Court upheld the abrogation of Article 370, but directed the Election Commission to hold elections in J&K by September 2024. Dealt with major constitutional and federal issues.
Ongoing Discussions on MoP
The debate between the government and the SC Collegium on the finalization of the revised Memorandum of Procedure for judicial appointments continues, particularly on issues of national security and accountability.
Increase in Diversity in Judicial Appointments
Continued focus by the Collegium on recommending, and government on appointing, judges from diverse backgrounds, including more women judges and judges from minority communities, for a more representative judiciary.
UPSC Previous Year Questions (PYQs)
Prelims MCQs
With reference to the Constitution of India, consider the following statements:
- No High Court shall have the jurisdiction to declare any Central law to be constitutionally invalid.
- An amendment to the Constitution of India cannot be called into question by the Supreme Court of India.
Which of the statements given above is/are correct?
(a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2
Answer: (d)
Explanation: Both statements are incorrect. High Courts can examine the constitutional validity of Central laws. The Supreme Court can question constitutional amendments based on the Basic Structure doctrine.
Consider the following statements:
- The Supreme Court of India tenders advice to the President of India on matters of law or fact.
- Only the Supreme Court of India has the power to declare any law as unconstitutional.
Which of the statements given above is/are correct?
(a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2
Answer: (a)
Explanation: Statement 1 is correct (Advisory Jurisdiction, Art 143). Statement 2 is incorrect; High Courts also have the power of judicial review and can declare laws unconstitutional.
The power to increase the number of judges in the Supreme Court of India is vested in:
(a) The President of India (b) The Parliament (c) The Chief Justice of India (d) The Law Commission
Answer: (b)
Explanation: Article 124(1) clearly states that the Parliament may by law provide for a greater number of other judges.
Mains Questions
"The role of the 'Collegium' in India's judicial appointment process has faced widespread criticism due to its perceived lack of transparency and accountability. Discuss the arguments for and against the Collegium system, and propose alternative mechanisms for judicial appointments."
"Judicial activism is not new to India. Analyse the various facets of judicial activism and its implications in the Indian context."
"The Indian Constitution embodies the principle of 'separation of powers' but also provides for 'checks and balances' to ensure accountability." Discuss the various mechanisms through which the Supreme Court acts as a check on the powers of the Executive and the Legislature.
Original MCQs for Prelims
With reference to the Supreme Court of India, which of the following statements is/are correct?
- The number of judges in the Supreme Court, other than the Chief Justice of India, is fixed by the President of India.
- The Supreme Court has original jurisdiction in disputes between the Government of India and one or more States.
- The law declared by the Supreme Court is binding on all courts within the territory of India, but not on the Supreme Court itself.
Select the correct answer using the code given below:
(a) 1 and 2 only (b) 2 only (c) 2 and 3 only (d) 1, 2 and 3
Answer: (b)
Explanation: Statement 1 is incorrect (Parliament fixes the number). Statement 2 is correct (Art 131). Statement 3 is incorrect (SC's law is binding on itself too, though it can review/overrule).
Which of the following powers of the Supreme Court of India is/are discretionary?
- Granting Special Leave to Appeal from any judgment of any court or tribunal.
- Tendering opinion to the President on a question of law or fact of public importance.
- Reviewing its own judgments or orders.
Select the correct answer using the code given below:
(a) 1 only (b) 1 and 2 only (c) 2 and 3 only (d) 1, 2 and 3
Answer: (d)
Explanation: All three are discretionary powers of the Supreme Court under Articles 136, 143(1), and 137 respectively.
Original Descriptive Questions for Mains
"The Supreme Court of India, despite constitutional safeguards for its independence, faces constant challenges from both the executive and internal dynamics, impacting its efficacy as the ultimate guardian of the Constitution." Critically examine this statement, highlighting the major contemporary challenges and suggesting measures to further strengthen its independence and efficiency.
Analyze the scope and significance of the Supreme Court's power to do "complete justice" under Article 142 of the Constitution. Discuss how this extraordinary power both reinforces the Court's role as a protector of justice and raises concerns about potential overreach.