Indian Supreme Court: Structure and Appointments

• The Indian judicial system is integrated, with the Supreme Court at the top, followed by High Courts and subordinate courts.
• This court system, derived from the Government of India Act of 1935, applies both central and state laws.
• The Parliament is authorized to regulate the court system.
• Articles 124 to 147 pertain to the Supreme Court.
• The Constitution of India designates Delhi as the seat of the Supreme Court.
• The Chief Justice of India can appoint other locations for the Supreme Court with Presidential approval.
• This provision is optional.
• The Parliament has the power to organize the Supreme Court.

Appointment of Judges - Eligibility

• Must be a citizen of India.
• Must meet one of the following:
  • Have been a High Court judge for at least five years (or in succession).
  • Have been a High Court advocate for at least ten years (or in succession).
  • Be a distinguished jurist, in the President's opinion.

Appointment Procedure - Article 124

• The President appoints the Chief Justice of India (CJI) after consulting judges from the Supreme Court and High Courts as deemed necessary.
• The President appoints judges other than the CJI after consulting the Chief Justice of India and other Supreme Court and High Court judges as necessary.

First Judges Case (1981) or S. P. Gupta Case

• Consultation does not mean concurrence and only implies an exchange of views.

Second Judges Case (1993)

• Consultation means concurrence.
• The CJI only needs to consult with two senior-most judges for judicial appointments.
• However if the executive raises an objection to appointment, the Collegium is not required to change its recommendation, which is binding on the executive.
• The Supreme Court ruled that the senior-most judge of the Supreme Court alone should be appointed CJI.

Third Judges Case (1998 - Presidential Reference)

• Includes "consultation of plurality judges".
• The CJI should consult with four senior-most Supreme Court judges to form opinions on judicial appointments and transfers.
• Recommendations made by the CJI without adhering to consultation norms and requirements are not binding on the government.

Oath of a Judge

• Before assuming office, a Supreme Court judge must take an oath before the President or an appointed representative.
• The Supreme Court judge swears to:
  • Bear true faith and allegiance to the Constitution of India.
  • Uphold the sovereignty and integrity of India.
  • Faithfully perform duties of office to the best of ability, knowledge and judgment, without fear, favor, affection or ill-will.
  • Uphold the Constitution and the laws.

Salary and Allowances (Article 125)

• The Parliament determines the salaries, allowances, leave, pension, etc., for Supreme Court judges.
• The Parliament cannot alter the privileges and rights of a judge to their disadvantage after appointment, except during a financial emergency.
• Salaries, allowances, and pensions of Supreme Court judges are charged to the Consolidated Fund of India and are non-votable by the Parliament.

Tenure

• The Constitution does not specify a fixed tenure for Supreme Court judges.
• A Supreme Court judge may leave office due to:
  • Reaching the age of 65.
  • Resigning by addressing a resignation to the President.
  • Removal by the President through impeachment prescribed in Article 124(4) of the Constitution of India on grounds of proven misbehavior or incapacity.

Removal of Judges

• A Supreme Court judge can be removed from office by an order of the President.
• The President can only issue the removal order after Parliament presents an address in the same session for the removal.

The Judges Enquiry Act (1968)

• This act regulates the process of removing a Supreme Court judge through impeachment.
• A removal motion needs signatures from 100 members of Lok Sabha or 50 members of Rajya Sabha, given to the Speaker/Chairman.
• The Speaker/Chairman can either admit the motion or refuse it.
• If admitted, the Speaker/Chairman forms a three-member committee to investigate the charges.
• The committee consists of:
  • The Chief Justice, or a judge of the Supreme Court.
  • A Chief Justice of a High Court.
  • A distinguished jurist.
• If the committee finds the judge guilty of misbehavior or incapacity, the House can consider the motion.
• If each House of Parliament passes the motion by a special majority, an address is presented to the President for removal of the judge.
• The President then issues an order removing the judge.

Acting Chief Justice

• The President can appoint a Supreme Court judge as an acting Chief Justice of India if:
  • The office of Chief Justice of India is vacant.
  • The Chief Justice of India is temporarily absent.
  • The Chief Justice of India is unable to perform the duties of their office.

Ad hoc Judge

• When there is a lack of quorum of permanent judges, 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.
• This appointment is made after consulting with the Chief Justice of the High Court and getting the President's consent.
• The appointed judge should be qualified for a Supreme Court judgeship.

Retired Judge

• The Chief Justice of India can request a retired Supreme Court judge or a retired High Court judge to serve temporarily on the Supreme Court.
• This requires the President's consent and the consent of the individual to be appointed.
• Such a judge is entitled to allowances as the President may determine.
• They enjoy the same jurisdiction, powers, and privileges as a Supreme Court judge, but don't officially hold this status.

Procedure of the Court

• The Supreme Court can create rules for its practice and procedure, which are subject to laws made by Parliament and the Constitution.
• Constitutional cases or references from the President under Article 143 are decided by a bench of at least five judges (constitutional bench).
• Other cases are usually decided by a bench of at least three judges.
• Judgments are delivered in an open court.
• All judgments are by majority vote, but dissenting opinions are permitted.
• The law declared by the Supreme Court is binding on all courts within India.
• All authorities (civil and judicial) in India must aid the Supreme Court.
• The CJI has exclusive power in appointing court staff, and administrative expenses, including salaries, allowances, and pensions, are charged to the Consolidated Fund of India.

Independence of the Supreme Court

• Mode of Appointment
• Security of Tenure
• Fixed Service Conditions
• Expenses Charged on Consolidated Fund
• Conduct of Judges cannot be Discussed
• Ban on Practice after Retirement
• Power to Punish for its Contempt
• Freedom to Appoint its Staff
• Its Jurisdiction cannot be Curtailed
• Separation from Executive

Original Jurisdiction (Article 131)

• It is exclusive, meaning that no other court can decide these disputes.
• Involves disputes between:
  • The Government of India and one or more states.
  • The Government of India and states on one side, and one or more other states on the other side.
  • Two or more states, if the dispute involves a question of law or fact on which the existence or extent of a legal right depends.
• This jurisdiction doesn't apply to:
  • Disputes arising from pre-Constitution treaties/agreements.
  • Disputes arising from any treaty/agreement that excludes such jurisdiction.
  • Inter-state water disputes.
  • Matters referred to the Finance Commission.
  • Adjustments of expenses/pensions between the Union and states.
  • Commercial disputes between the Union and states.
  • Recovery of damages by a state against the Union.

Writ Jurisdiction (Article 32)

• Original jurisdiction.
• Not exclusive.
• Concurrent with High Courts.
• The High Court has wider Writ Jurisdiction than the Supreme Court.
• The Parliament can give the Supreme Court the power to issue writs for other purposes.

Appellate Jurisdiction

• Includes:
  • Appeals in constitutional matters
  • Appeals in civil matters
  • Appeals in criminal matters
  • Appeals by special leave

Appellate Jurisdiction - Constitutional Matters (Article 132)

• An appeal can be made to the Supreme Court against a High Court judgment if the High Court certifies that the case involves a substantial question of law requiring constitutional interpretation.
• Based on the certificate received from the High Court, the party can appeal on the ground that the case has been wrongly decided

Appellate Jurisdiction - Civil Matters (Article 133)

• The High Court must certify:
  • That the case involves a substantial question of law of general importance.
  • That the Supreme Court needs to decide the question.
• Originally, only civil cases involving ₹20,000 or more could be appealed, but the 30th Constitutional Amendment Act of 1972 removed this limit.

Appellate Jurisdiction - Criminal Matters (Article 134)

• If the High Court has:
  • Reversed an acquittal order on appeal and sentenced the accused to death.
  • Taken a case from a subordinate court, convicted the accused, and sentenced them to death.
  • Certifies that the case is appropriate for appeal to the Supreme Court.
• In the first two scenarios the Supreme Court can hear the case even without any certificates from the High Court.
• By 1970, the Criminal Appellate Jurisdiction of the Supreme Court had been enlarged by Parliament.
• The High Court has:
  • Reversed an acquittal order on appeal and sentenced the accused to imprisonment for life or for ten years.
  • Taken a case from a subordinate court, convicted the accused, and sentenced them to imprisonment for life or for ten years.

Appeal by Special Leave (Article 136)

• The Supreme Court can grant special leave in its discretion to appeal from any judgment passed by any court or tribunal (except military tribunals and court martial)
• This power is exceptional and should be exercised sparingly and cautiously in extraordinary situations.

Advisory Jurisdiction (Article 143)

• The President can seek the Supreme Court's opinion on two categories of matters:
  • Any question of law or fact of public importance that has arisen or is likely to arise.
  • Any dispute arising from a pre-constitution treaty, agreement, covenant, engagement, or similar instrument.
• In the first case, the Supreme Court may provide its opinion or may refuse to do so.
• In the second case, the Supreme Court must provide its opinion.
• The opinion expressed by the Supreme Court in both cases is advisory and not binding on the President.

A Court of Record (Article 129)

• The judgments, proceedings, and acts of the Supreme Court are recorded for permanent memory.
• These records are admitted as evidence and cannot be questioned when produced in any court.
• They are recognized as legal precedents and references.
• The Supreme Court has the power to punish for contempt of court.

Power of Judicial Review

• This power allows the Supreme Court to examine the constitutionality of legislative enactments and executive orders of both the central and state governments.

Constitutional Interpretation

• The Supreme Court is the ultimate interpreter of the Constitution.
• It can provide the final version of the spirit and content of the Constitution's provisions and the language used.

Other Powers

• Original, exclusive, and final authority to decides disputes regarding the election of the President and Vice President.
• Upon Presidential reference, the court inquires into the conduct and behavior of the chairman and members of the Union Public Service Commission.
• The court can recommend the President to remove members from the Union Public Service Commission if it finds them guilty of misbehavior; the advice tendered is binding.
• Article 137 gives the court the power to review its own judgment or order.
• Authorized to withdraw cases pending before high courts and dispose of them itself, and it can also transfer a case or appeal pending before a high court to another.
• Possesses the power of judicial superintendence and control over all courts and tribunals functioning throughout India
• Article 141 the law established by the Supreme Court is binding on all courts in India and its decree or order is enforceable throughout the country.
• Article 144 details that all authorities (civil and judicial) in the country should act in aid of the Supreme Court.

Enforcement of Decrees and Orders of Supreme Court; Article 142

• The Supreme Court may pass the necessary decree or order to achieve complete justice in any pending case; such decrees or orders are enforceable throughout India as prescribed either by the Parliament or by the President via order.
• The Supreme Court, in order to enforce a matter, has power to make any order for securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

Enlargement of Jurisdiction (Article 138)

• The Parliament can enlarge the Supreme Court's jurisdiction and powers concerning matters in the Union list.
• Its jurisdiction and powers concerning other matters can be enlarged by a special agreement between the Centre and the states.