Supreme Court of India

Constitutional Foundations & Structure

• Integrated judicial system adopted from Government of India Act, 1935.
• Unlike USA’s dual court system, India has a single hierarchy with the Supreme Court (SC) at the apex.
• Supreme Court inaugurated on 28 Jan 1950.
• Relevant constitutional provisions: Articles $124\text{–}147$.
• Parliament empowered to regulate SC via ordinary law.

Composition & Strength

• Maximum sanctioned strength: **Chief Justice of India (CJI) $1$ + *34* judges $\Rightarrow$ total 35.
• Parliament can alter strength by legislation (latest change in 2019 raised it to 34 judges).

Appointment Process

• Formal appointment: by President of India after “consultation” (now read as concurrence) with judiciary.
• Evolution of consultation:
  • 1st Judges’ Case (1982) $\rightarrow$ Executive primacy.
  • 2nd Judges’ Case (1993) $\rightarrow$ Collegium system born; CJI + 2 senior-most judges.
  • 3rd Judges’ Case (1998) (Presidential Reference) $\rightarrow$ Collegium expanded to CJI + 4 senior-most judges.
• 99th Constitutional Amendment Act, 2014 + National Judicial Appointments Commission Act, 2014 attempted to replace Collegium with NJAC.
  • Struck down by SC in 2015 (4:1 verdict) as violating Basic Structure $\Rightarrow$ collegium revived.
• CJI succession rule: As per 2nd Judges’ Case, senior-most SC judge must become CJI.

Qualification – Article $124(3)$

• Must be a citizen of India and satisfy at least one:
  1. Judge of a High Court(s) for $\ge 5$ years.
  2. Advocate of a High Court(s) for $\ge 10$ years.
  3. “Distinguished jurist” in President’s opinion (rarely invoked).
• No constitutional minimum age.

Oath – Article $124(6)$ & Third Schedule

• Administered by President (or a delegate).
• Judge swears to:
  • Bear true faith & allegiance to Constitution.
  • Uphold sovereignty & integrity of India.
  • Perform duties faithfully, impartially, without fear/favour/affection/ill-will.

Salaries & Allowances – Article $125$

• Fixed by Parliament: Supreme Court Judges (Salaries & Conditions of Service) Act, 1958 (amended 2018).
• Cannot be varied to disadvantage during tenure except under Financial Emergency (Art. $360$).
• Drawn from Consolidated Fund of India (charged expenditure).

Tenure – Articles $124(2)$ & $124(4)$

• No fixed term; security until:
  1. Attains age $65$ (HC judges retire at $62$).
  2. Resigns to President.
  3. Removed by impeachment for proven misbehaviour or incapacity.

Removal / Impeachment – Articles $124(4)\,\&\,124(5)$

• Governed by Judges (Inquiry) Act, 1968.
• Step-wise procedure:
  1. Notice signed by $100$ LS or $50$ RS MPs.
  2. Speaker/Chairman admits $\rightarrow$ 3-member Inquiry Committee.
  3. If “guilty”, motion in each House; requires Special Majority:
     \text{Majority of total membership} \, + \, \tfrac{2}{3}\text{ of members present & voting}
  4. Upon dual passage, President issues removal order.
• No alternative removal method exists.
• History: No judge actually removed; motion against Justice V. Ramaswami (1993) failed in LS.

Acting, Ad hoc & Retired Judges

• Acting CJI – Article $126$: President may appoint senior SC judge when CJI post vacant or CJI unable to act.
• Acting Chief Justice of HC – Article $223$: Similar provision at HC level.
• Ad hoc SC Judge – Article $127$: When quorum lacking, CJI (with President’s consent) can invite an HC judge; such judge enjoys full SC powers/privileges & priority over HC work.
• Ad hoc HC Judge – Article $224A$ (revived 2021) for HCs.
• Retired Judges – Article $128$: CJI, with President’s consent, may request retired SC / eligible HC judge to sit & act; enjoy allowances but not counted in strength.

Seat & Benches – Article $130$

• Permanent seat: New Delhi.
• CJI, with Presidential approval, may designate other place(s); never exercised so far.
• Minimum quorum for Constitution Bench: 5 judges (Art. $145$ rules).

Rule-Making Power – Article $145$

• SC frames rules for procedure (appeals, review, SLP, etc.) with Presidential approval. Latest: Supreme Court Rules, 2013.

Ensuring Independence of the Supreme Court

1. Security of tenure – removal only via impeachment.
2. Fixed service conditions – non-variable salary/pension (Art. $125$).
3. Expenses charged on Consolidated Fund – financial autonomy.
4. Post-retirement practice banned – avoids conflict of interest.
5. Contempt power – Articles $129$ & $142$.
6. Separation from Executive – Directive Principle Art. $50$.
7. Collegium-based appointments – judicial primacy.
8. Parliamentary discussion barred – Art. $121$ except impeachment.
9. Administrative autonomy – Art. $146$ staff recruitment.

• Independence recognised as part of Basic Structure (Kesavananda Bharati, 1973).

Jurisdiction & Powers

1. Original Jurisdiction – Article $131$

• Exclusive suits between:
  • Centre vs State(s)
  • Centre & State(s) vs State(s)
  • State vs State
• Must involve a legal right (not political).
• Exclusions: pre-constitutional treaty matters (if barred by law), Inter-State water disputes (Art. $262$), election petitions, etc.

2. Writ Jurisdiction – Article $32$

• Heart & Soul of Constitution (Ambedkar).
• Five writs for enforcement of Fundamental Rights only: Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo-Warranto.
• Compare: HCs under Art. $226$ can issue for FR + other legal rights.

3. Appellate Jurisdiction – Articles $132$–$136$

• Constitutional matters ($132$) – substantial constitutional question.
• Civil matters ($133$) – substantial question of law of general importance + HC certificate.
• Criminal matters ($134$) – death sentence cases, withdrawn cases, or HC fitness certificate.
• Special Leave Petition (SLP) – Art. $136$: discretionary, from any court/tribunal (except Court-martial).

4. Advisory Jurisdiction – Article $143$

• President may consult SC on:
  • 143(1): any public importance question of law/fact.
  • 143(2): treaty-related disputes excluded from Art. $131$.
• Opinion is advisory, non-binding; SC may refuse.
• Illustrative references (chronological selection):
  1. Delhi Laws Act (1951) – delegation of legislative power.
  2. Berubari Union (1960) – cession of territory to Pakistan.
  3. Special Courts Bill (1978) – speedy trial for politicians.
  4. Cauvery Tribunal (1992), Ayodhya (1993 – SC declined), Punjab Termination of Agreements Act (2004), NJAC improvement reference (2015) etc.

5. Court of Record – Article $129$

• Judgments have evidentiary value; cannot be questioned.
• Inherent contempt power (Contempt of Courts Act, 1971).

6. Judicial Review (Constitutionality Check)

• Derived from Articles $13,32,131\text{–}136$; part of Basic Structure.
• Can invalidate:
  1. Ordinary legislation.
  2. Executive orders.
  3. Constitutional Amendments (if violate Basic Structure).
• Landmark: Kesavananda Bharati (1973), Minerva Mills (1980).

7. Review Jurisdiction – Article $137$

• SC may re-examine its own judgments to cure error/miscarriage of justice.
• Grounds align with Order XLVII CPC:
  1. New evidence.
  2. Error apparent.
  3. Any other sufficient reason.

8. Constitutional Interpretation Role

• Final interpreter & guardian.
• Applied doctrines: Harmonious Construction, Pith & Substance, Eclipse, Severability, Colourable Legislation.
• Notable cases: Golak Nath (1967), Kesavananda (1973), SR Bommai (1994).

9. Miscellaneous / Enlarged Powers

• Article $138$ – Parliament may extend SC jurisdiction on Union List matters.
• Article $139A$ – SC can withdraw/transfer cases from HCs on identical questions.
• Article $142$ – “Complete Justice” power: may pass any order necessary, even beyond existing statutes.
• Article $145$ – Rule-making (already discussed).

Ethical & Practical Significance

• SC’s independence & wide jurisdiction uphold Rule of Law, check misuse of power, and maintain federal balance.
• Advisory opinions foster executive-judicial dialogue without adversarial litigation.
• Collegium vs NJAC debate reflects tension between accountability & independence.
• Contempt power ensures dignity but raises free-speech questions.

Numerical / Statistical Quick Facts

• Strength: $35$ (1 CJI + 34).
• Retirement age: $65$ yrs.
• Impeachment motion thresholds: $100$ (LS) / $50$ (RS) signatures.
• Special majority formula already shown above.
• Minimum Constitution Bench quorum: $5$ judges.

Memory Aids & Mnemonics

• Writs – "H-M-P-C-Q": Habeas, Mandamus, Prohibition, Certiorari, Quo-Warranto.
• Original parties – "C ↔ S" (Centre & State interactions).
• Removal Steps – "N I D S" : Notice $\rightarrow$ Inquiry $\rightarrow$ Debate $\rightarrow$ Special majority.