INDIAN POLITY

Judiciary-Supreme Court
Lokesh Saini
 Single system of courts, adopted from the Government of India Act of 1935, enforces
both Central laws as well as the state laws.

The Supreme Court of India was inaugurated on January 28, 1950. It succeeded the
Federal Court of India, established under the Government of India Act of 1935.

Articles 124 to 147 in Part V of the Constitution deal with the organization,
independence, jurisdiction, powers, procedures and so on of the Supreme Court. The
Parliament is also authorized to regulate them

Judiciary
 COMPOSITION AND APPOINTMENT

The Parliament has increased this number of other judges progressively to ten in 1956, to
thirteen in 1960, to seventeen in 1977, to twenty-five in 1986, to thirty in 2008 and to
thirty-three in 2019

The judges of the Supreme Court are appointed by the president. The chief justice is
appointed by the president after consultation with such judges of the Supreme Court and
high courts as he deems necessary.

The other judges are appointed by president after consultation with the chief justice
and such other judges of the Supreme Court and the high courts as he deems necessary.
The consultation with the chief justice is obligatory in the case of appointment of a judge
other than Chief justice.

Judiciary
 COMPOSITION AND APPOINTMENT

The Supreme Court has given different interpretation of the word ‘consultation’ in the above
provision.

The 99th Constitutional Amendment Act of 2014 and the National Judicial Appointments
Commission Act of 2014 have replaced the collegium system of appointing judges to the
Supreme Court and High Courts with a new body called the National Judicial
Appointments Commission (NJAC).

However, in 2015, the Supreme Court has declared both the 99th Constitutional
Amendment as well as the NJAC Act as unconstitutional and void. Consequently, the earlier
collegium system became operative again. This verdict was delivered by the Supreme Court
in the Fourth Judges case (2015). The court opined that the new system (i.e., NJAC) would
affect the independence of the judiciary.

Judiciary
 COMPOSITION AND APPOINTMENT

The discretion of appointing the CJI was curtailed by the Supreme Court in the Second
Judges Case (1993), in which the Supreme Court ruled that the seniormost judge of the
Supreme Court should alone be appointed to the office of the chief justice of India

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. (a) He should have been a judge of a High Court (or high courts in succession) for five
years; or (b) 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.

Judiciary
 COMPOSITION AND APPOINTMENT

Oath or Affirmation
1. to bear true faith and allegiance to the Constitution of India;
2. to uphold the sovereignty and integrity of India;
3. to duly and faithfully and to the best of his ability, knowledge and judgement perform the
duties of the Office without fear or favour, affection or ill-will; and
4. to uphold the Constitution and the laws.

The salaries, allowances, privileges, leave and pension of the judges of the Supreme Court
are determined from time to time by the Parliament.

Judiciary
 COMPOSITION AND APPOINTMENT

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. Any question regarding his age is to
be determined by such authority and in such manner as provided by Parliament.
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.

Judiciary
 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 (ie, 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.

Judiciary
 Removal of Judges

The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of the Supreme Court by
the process of impeachment:
1. A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya
Sabha) is to be given to the Speaker/ Chairman.
2. The Speaker/Chairman may admit the motion or refuse to admit it.
3. If it is admitted, then the Speaker/ Chairman is to constitute a three-member committee to investigate into the
charges.
4. The committee should consist of (a) the chief justice or a judge of the Supreme Court, (b) a chief justice of a
high court, and (c) a distinguished jurist.

5. If the committee finds the judge to be guilty of misbehaviour or suffering from an incapacity, the House can take
up the consideration of the motion.
6. After the motion is passed by each House of Parliament by special majority, an address is presented to the
president for removal of the judge.
7. Finally, the president passes an order removing the judge.
Judiciary
 ACTING, ADHOC AND RETIRED JUDGES

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

Judiciary
 ACTING, ADHOC AND RETIRED JUDGES

Retired Judge
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

Judiciary
 INDEPENDENCE OF SUPREME COURT

It is the guarantor of the fundamental rights of the citizens and guardian of the Constitution.

The judges of the Supreme Court are appointed by the President (which means the cabinet) in
consultation with the members of the judiciary itself (ie, judges of the Supreme Court and the high
courts). This provision curtails the absolute discretion of the executive as well as ensures that the
judicial appointments are not based on any political or practical considerations

The judges of the Supreme Court are provided with the Security of Tenure. They can be removed
from office by the President only in the manner and on the grounds mentioned in the Constitution.

The salaries, allowances, privileges, leave and pension of the judges of the Supreme Court are
determined from time to time by the Parliament.

Judiciary
 INDEPENDENCE OF SUPREME COURT

The salaries, allowances and pensions of the judges and the staff as well as all the administrative
expenses of the Supreme Court are charged on the Consolidated Fund of India.

The Constitution prohibits any discussion in Parliament or in a State Legislature with respect to the
conduct of the judges of the Supreme Court in the discharge of their duties, except when an
impeachment motion is under consideration of the Parliament.

The retired judges of the Supreme Court are prohibited from pleading or acting in any Court or
before any authority within the territory of India. This ensures that they do not favour any one in the
hope of future favour.

The Supreme Court can punish any person for its contempt. Thus, its actions and decisions cannot
be criticised and opposed by any body.

Judiciary
 INDEPENDENCE OF SUPREME COURT

The Chief Justice of India can appoint officers and servants of the Supreme Court without any
interference from the executive. He can also prescribe their conditions of service.

The Parliament is not authorised to curtail the jurisdiction and powers of the Supreme Court. The
Constitution has guaranteed to the Supreme Court, jurisdiction of various kinds. However, the
Parliament can extend the same.

The Constitution directs the State to take steps to separate the Judiciary from the Executive in the
public services. This means that the executive authorities should not possess the judicial powers.

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

The Constitution has conferred a very extensive jurisdiction and vast powers on the Supreme Court.

The jurisdiction and powers of the Supreme Court can be classified into the following:
1. Original Jurisdiction.
2. Writ Jurisdiction.
3. Appellate Jurisdiction.
4. Advisory Jurisdiction.
5. A Court of Record.
6. Power of Judicial Review.
7. Constitutional Interpretation
8. Other Powers.

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

Original Jurisdiction
As a federal court, the Supreme Court decides the disputes between different units of the Indian
Federation. More elaborately, any dispute:
(a) Between the Centre and one or more states; or
(b) Between the Centre and any state or states on one side and one or more other states on the other
side; 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.

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

Points to be noted in this regard

1.the dispute must involve a question (whether of law or fact) on which the existence or extent of a
legal right depends.
2.any suit brought before the Supreme Court by a private citizen against the Centre or a state
cannot be entertained under this

In 1961, the first suit, under the original jurisdiction of the Supreme Court, was brought by West
Bengal against the Centre. The State Government challenged the Constitutional validity of the Coal
Bearing Areas (Acquisition and Development) Act, 1957, passed by the Parliament. However, the
Supreme Court dismissed the suit by upholding the validity of the Act.

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

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 warranto 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.

the original jurisdiction of the Supreme Court about federal disputes is different from its original
jurisdiction regarding disputes relating to fundamental rights.
In the first case, it is exclusive and in the second case, it is concurrent with high courts
jurisdiction

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

Writ Jurisdiction
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

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

Appellate Jurisdiction
As mentioned earlier, the Supreme Court has not only succeeded the Federal Court of India but also
replaced the British Privy Council as the highest court of appeal.
The Supreme Court is primarily a court of appeal and hears appeals against the judgements of the
lower courts.
It enjoys a wide appellate jurisdiction which can be classified under four heads:
(a) Appeals in constitutional matters.
(b) Appeals in civil matters.
(c) Appeals in criminal matters.
(d) Appeals by special leave.

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

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, covenant, engagement,
sanad or other similar instruments

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

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

A Court of Record
As a Court of Record, the Supreme Court has two powers:
(a) 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.

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

Contempt of court may be civil or criminal. Civil contempt means willful disobedience to any
judgement, order, writ or other process of a court or willful breach of an undertaking given to a
court. Criminal contempt means the publication of any matter or doing an act which–
(i) scandalizes 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.

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

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.

Constitutional Interpretation
The Supreme Court is the ultimate interpreter of the Constitution. It can give final version to the
spirit and content of the provisions of the constitution and the verbiage used in the constitution.

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT

The important doctrines for interpretation of the constitution are

1. Doctrine of Severability
2. Doctrine of Waiver
3. Doctrine of Eclipse
4. Doctrine of Territorial Nexus
5. Doctrine of Pith and Substance
6. Doctrine of Colourable Legislation
7. Doctrine of Implied Powers
8. Doctrine of Incidental and Ancillary Powers
9. Doctrine of Precedent
10. Doctrine of Occupied Field
11. Doctrine of Prospective Overruling
12. Doctrine of Harmonious Construction
13. Doctrine of Liberal Interpretation

Judiciary
 JURISDICTION AND POWERS OF SUPREME COURT- Other Powers

 It decides the disputes regarding the election of the president and the vicepresident.

 It enquires into the conduct and behaviour of the chairman and members of the Union Public
Service Commission on a reference made by the president.

 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.

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

 Its law is binding on all courts in India. Its decree or order is enforceable throughout the country

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

Judiciary
Judiciary
Judiciary
Judiciary
Judiciary
Judiciary