Supreme Court
* The Constitution of India established an independent judiciary, along with the legislative and executive branches.
* It is the highest court in India. Unlike the American constitution, India has established a comprehensive judicial system.
* In India, there is the Supreme Court at the national level, followed by High Courts at the state level, and below them, district courts and other lower courts in a hierarchical order.
* A dual judicial system exists in a true federal form of government.
* This means there is a Federal Court at the central level and a State Court at the state level, implementing laws.
* In America, the judiciary is divided. Briefly, although India is a federal state like America, our judicial system resembles a "Unified Judicial System."
* That is, it established a single law and a single basic statute.
* India adopted the unified judicial system from Britain.
* There is no division of the judiciary in India. All courts in India operate under the supervision of the Supreme Court.
Supreme Court - Historical Background
* In our country, the concept of the Supreme Court having independent authority was adopted from America.
* The structure of the Indian judicial system resembles Britain, but its functioning style resembles America.
* When forming the Indian judicial system, they based it on the judicial systems of America and Britain and shaped the Indian judicial system.
Supreme Court - Historical Context:-
* During the East India Company's rule, according to the Regulating Act of 1773, the Supreme Court was established for the first time in our country in 1774 near Fort William in Calcutta.
* Sir Elijah Impey was the first Chief Justice for this court.
* Through the Government of India Act of 1935, the Federal Court was established on October 1, 1937.
* Sir Maurice Gwyer was the first Chief Justice of this court.
* The Supreme Court of India was inaugurated on January 28, 1950.
* In the beginning, the Supreme Court, the highest court in the country, started functioning from the Chamber of Princes in the Parliament building.
* In 1958, the Supreme Court was moved to its current building.
* H.J. Kania, who was the last Chief Justice of the Federal Court, served as the first Chief Justice of the Supreme Court.
* Because the word "federal" is not used anywhere in the Constitution of India, the current Supreme Court holds all the powers exercised by the Federal Court.
* And there was an opportunity to appeal the judgments given by the Federal Court to the Privy Council in London.
* But the judgment given by our current Supreme Court is final.
* Our Supreme Court, acting as the protector of the Constitution, has control over all the courts in India.
* Our judicial system works with the goal that "Justice and Dharma triumph" in our Supreme Court.
* The architect for the construction of our Supreme Court building was "Ganesh Deolkar."
* Part 5 of the Indian Constitution, Articles 124 to 147, explains about the structure of the Supreme Court.
* "Carnelin Dikaru" is among those who worked hard to develop the judicial system in India.
* "Cornwallis" is mentioned as the father of the judicial system in India.
Supreme Court Structure:-
* Article 124 states about the establishment and structure of the Supreme Court in India.
* 124(1) According to the provision, the Parliament determines the number of judges in the Supreme Court. The number of judges in the Supreme Court is not fixed in the Indian Constitution.
* When the Constitution of India came into force, the Supreme Court had (1+7) one Chief Justice and seven other judges.
* Currently, the number of judges in the Supreme Court has reached 31 (30+1).
* Parliament determines the number of judges through ordinary law.
| Year | Number of Judges (CJ + Other Judges) |
|---|---|
| 1950 | 1 + 7 |
| 1956 | 1 + 10 |
| 1960 | 1 + 13 |
| 1977 | 1 + 17 |
| 1986 | 1 + 25 |
| 2008/09 | 1 + 30 |
| 2020 | 33 + 1 |
Note: - According to the Judges (Amendment) Act, in 2008, the number was fixed at 31 (1+30). It came into effect from February 9, 2009.
124 (2) Article Provision - Appointment of Judges
* The President appoints the Chief Justice and other judges of the Supreme Court by warrant under his hand and seal.
* In the appointment of judges other than the Chief Justice, the Chief Justice must be consulted.
* The President makes the appointment based on the advice of the Central Cabinet.
* The term "after consultation process" is enshrined in the Constitution.
Dispute over Consultation:-
* The Supreme Court has given many interpretations to the word "consultation" in the above mentioned point.
* In the case of 'S.P. Gupta Vs. Union of India 1982', the Supreme Court ruled that when the President appoints Supreme Court and High Court judges, it is not mandatory to consult the 'Collegium' (meaning the Chief Justice of the Supreme Court).
Consultation means only seeking opinion, they may or may not consider them.
* "Supreme Court Advocates-on-Record Association vs. Government of India (1993)" - In the case that occurred, ruling, while appointing Supreme Court and High Court judges, the President (Collegium) must compulsorily consult the Chief Justice of the Supreme Court. This is referred to as the Second Judges Case.
* The Second Judges Case judgment shows that the Collegium system was adopted. Moreover, this bench ordered that the senior-most judge should be appointed as the Chief Justice, continuing the old tradition.
* In 1998, the President of India, K.R. Narayanan, sought the Supreme Court's advice on the Collegium system. To this, the Supreme Court in 1999, in a bench of 9 judges, gave a verdict on the Collegium. That is - the President must necessarily follow the Collegium.
* Collegium means that the Chief Justice of the Supreme Court, along with the advice of 4 senior judges, is called the Collegium. It stated that if any two judges among them express a different opinion, the Collegium is not required to send that advice to the President. This is referred to as the 3rd Judges Case.
National Judicial Appointments Commission Establishment
* The Collegium system, where Supreme Court judges themselves appoint judges, was first started in 1993. However, the NDA government tried to abolish this system in 2003, but it was not possible to implement it.
* After this, the UPA government, in the matter of appointment of judges, to abolish the Collegium system and to establish a National Judicial Appointments Commission in its place, the then Law Minister in the Manmohan Singh government, Kapil Sibal, introduced the 120th Constitutional Amendment Bill in Parliament for the establishment of the National Judicial Appointments Commission, but this also could not be practically implemented.
* The Narendra Modi government recently withdrew the 120th Constitutional Amendment Bill introduced by the Manmohan Singh government and introduced the 121st Constitutional Amendment Bill in its place in Parliament. When this bill was approved by Parliament with a 2/3 majority and 17 states ratified it, the National Judicial Appointments Commission was established in 2014 through the 99th Constitutional Amendment Act (121st Constitutional Amendment Bill).
* In the appointment of Supreme Court and High Court judges, the President will now have to consult the National Judicial Appointments Commission (NJAC) instead of the Collegium.
* The National Judicial Appointments Commission (121st Constitutional Amendment) Bill was passed by the Lok Sabha on August 13, 2014, and by the Rajya Sabha on August 14, 2014. Subsequently, this NJAC Bill was ratified by 17 states in the country.
* The 121st Constitutional Amendment Bill, 2014 was approved by the President on December 31, 2014, and became the 99th Constitutional Amendment Act, and the National Judicial Appointments Commission was formed. It came into effect on April 13, 2015. (National Judicial Appointments Commission (99th Constitutional Amendment Act)).
* 3 articles were added to the Constitution through the National Judicial Appointments Commission.
- 124A - Structure of the National Judicial Appointments Commission - NJAC
- 124B - Functions of NJAC
- 124C - Parliament's power to legislate
Provision 124 (A) - National Judicial Appointments Commission. It has 6 members.
- The Chief Justice of the Supreme Court is the ex-officio Chairperson.
- Two senior judges in the Supreme Court.
- The Union Minister of Law and Justice.
- Two eminent persons are nominated by the President. The term of office of these two is only 3 years. They are not eligible for renomination.
* However, these two eminent persons are recommended by a committee consisting of the Chief Justice of the Supreme Court, the Prime Minister, and the Leader of the Opposition in the Lok Sabha to the President.* If there is no Leader of the Opposition in the Lok Sabha, the leader of the single largest party group in the Lok Sabha will be a member of the committee.
Note:- The construction of this commission is not void if there are vacancies or flaws. No discussion or activity taken by the commission can be questioned on this ground.
Provision - 124(B) - Functions of the Commission (NJAC)
* This commission recommends to the President for the appointment of the Chief Justice of the Supreme Court and other judges, and the Chief Justice of the High Court and judges.
* To recommend the transfer of a Chief Justice of a High Court and other judges to another High Court.
* To ensure that the persons recommended by this commission have the necessary competence and integrity.
Provision - 124(C) :- Power of Parliament to legislate
* By law, it can regulate the procedure for appointment of judges and Parliament can provide for the authority for the Commission to make its own rules for the performance of its functions.
* Articles amended by this Act: 124, 127, 128, 217, 222, 224, 224(A) and 231 (Total: 8)
National Judicial Appointments Commission is Invalid (NJAC) - Landmark Verdict by the Supreme Court.
* Supreme Court Advocates-on-Record Association Vs. Government of India - In the case that happened, the Supreme Court gave a landmark judgment on October 16, 2015.
* The Supreme Court ruled that the establishment of NJAC is a threat to the independence of the judiciary and that the establishment of NJAC is unconstitutional.
* Challenging the establishment of NJAC, in the case filed by the Supreme Court Advocates-on-Record Association, there is no clarity for the legal experts in the NJAC establishment and if any two out of 6 members in NJAC oppose, the appointment of judges will be stalled.
* Hence, even the opinion of the 'Chief Justice' and other Supreme Court judges in the NJAC has no value.
* Therefore, a five-member bench headed by Justice Khehar was set up on NJAC and after a full inquiry, the Supreme Court bench declared the NJAC invalid and gave its verdict.
* Names of the 5 judges on the bench constituted by the Supreme Court:
- Justice Khehar (Chairman)
- Justice Goel.
- Justice Kurian Joseph.
- Justice Lokur.
- Justice Chelameshwar.
Note:- * In the landmark judgment on the Collegium system, in the 5-member bench, four were on one side. Justice Chelameshwar, the only one on one side, supported the establishment of the Judicial Appointments Commission brought by the Central Government.
* In place of NJAC, again Collegium system - In the context of the Supreme Court's ruling that the NJAC establishment is unconstitutional, when the President again appoints Supreme Court and High Court judges, he will have to consult the Collegium headed by the Chief Justice.
Appointment of Chief Justice:-
* The Constitution does not specify special qualifications for the Chief Justice of the Supreme Court.
* Appointing a senior judge in the Supreme Court as the Chief Justice has become a tradition.
* From 1950 to 1973, the same rule was followed, but in 1973, ignoring three senior judges J.M. Shelat, A.S. Grover, K.S. Hegde, junior A.N. Ray was appointed as the Chief Justice.
* Similarly, in 1977, ignoring senior H.R. Khanna, junior M.H. Beg was appointed as the Chief Justice.
* In the above context, out of 50 Chief Justices, 48 were appointed according to seniority.
Supreme Court Judges Appointment - Qualifications
According to 124(3) - To be appointed as a Supreme Court Judge, one must have the following qualifications.
- Must be a citizen of India.
- Must have experience as a Chief Justice of a High Court for 5 years.
- Must have experience as a High Court Advocate for 10 years.
- Must be a distinguished jurist in the opinion of the President.
* Minimum age is not fixed regarding the appointment of judges.
* Retirement age of Supreme Court Chief Justice and other judges - 65 years.
124(4) Provision - Procedure for Removal of Supreme Court Judges
* The procedure for removing Supreme Court judges is adopted from the American system.
* Two reasons are mentioned for removing Supreme Court judges.
- Incapacity (In Capacity)
- Misbehavior
* The impeachment resolution to remove Supreme Court judges can be introduced in either House of Parliament. However, according to the Judges Inquiry Act 1968, certain rules must be followed to remove judges.
* To investigate the charges against the judges, the presiding officer of the House where it is first introduced constitutes a committee with three members.
* If this removal motion is to be introduced in the Lok Sabha first, the support of at least 100 members of the Lok Sabha is mandatory.
* If it is to be introduced in the Rajya Sabha first, at least 50 members must sign and give notice to the Chairman. They may allow or reject it.
Members in the Committee:-
- Chief Justice of the Supreme Court or another senior judge appointed by him
- Chief Justice of any High Court
- Jurist appointed by the President.
* If the inquiry committee gives an unfavorable report on the judge concerned, the motion to remove him in the House must be approved by both Houses, each in its own House, by a two-thirds (2/3) majority of the total members present and voting.
* The number of those who voted in favor must be more than half of the total number of members in each House. Afterwards, this resolution should be sent to the President. Based on this resolution, the President issues an order removing the judges.
* If the House where the removal motion was introduced rejects it, there is no need to send it to the second House.
* If the first House approves the removal motion, and if the second House does not approve the motion, the motion is considered to have lapsed.
* Meaning, when differences of opinion arise between the two Houses, there is no provision for a joint sitting of both Houses.
* For the first time in the country's history, a motion to remove a Supreme Court Chief Justice (2018) was introduced in the Rajya Sabha first, but the Chairman rejected it.
* No judge in India has been impeached until now.
* However, between 1991-93, a motion was introduced in the Lok Sabha against Justice V. Ramaswami, who was serving as a judge in the Supreme Court, on charges of corruption.
* But because the Congress party did not participate in the voting, this motion failed in 1993 due to lack of majority. But later Ramaswami resigned from his post.
Note:- If the committee investigating the judges reports that there is no evidence in the allegations against the judge, there is no opportunity to discuss any motion on it.
Provision 124 (5) - Parliament may make law to regulate the procedure for removal of the judges of the Supreme Court.
Provision 124 (6) - * Supreme Court judges must take oath of office in the presence of the President. Or in the presence of other persons appointed by them for that responsibility, meaning in the presence of the Chief Justice as mentioned in the Third Schedule.
Provision 124 (7) - * Supreme Court judges who have served as judges should not practice law in any court in our country after retirement.
Provision 125 - Salaries and Allowances of Judges
* Article 125 is about the salaries and allowances of Supreme Court judges.
* Salaries are paid from the Consolidated Fund of the Union.
* These salaries are not within the purview of IT. There should be no voting in Parliament on these.
* During the tenure of the judges, their salaries and allowances shall not be reduced.
* Except during a financial emergency, in no other circumstance should their salaries and allowances be reduced. Their salaries and allowances are mentioned in the Second Schedule.
* Current monthly salary of the Chief Justice of the Supreme Court - ₹2,80,000/-
* Salary of Supreme Court judges - ₹2,50,000/-
126 Article - Appointment of Acting Chief Justice (Ad Hoc)
* If the office of the Chief Justice of the Supreme Court becomes vacant for any reason or if he is absent, the President shall appoint an acting Chief Justice temporarily.
127 Article - Appointment of Ad Hoc Judges (Temporary Judges)
(Temporary Judges)
* When there is no quorum of judges sufficient to perform the functions of the Supreme Court, the Supreme Court may appoint temporary (Ad Hoc) judges.
* These temporary judges are appointed by the Chief Justice of the Supreme Court after consulting the President of India.
* All facilities provided to Supreme Court judges are provided to temporary judges.
* Those who are appointed as Ad Hoc judges must have the qualifications to be appointed as a Supreme Court judge.
128. Article - Utilization of Services of Retired Judges
* In the Supreme Court, the Chief Justice of the Supreme Court may request retired judges to attend the Supreme Court for the purpose of hearing any 'special cases'.
* The Chief Justice of the Supreme Court makes this proposal only after consulting the President.
* If the case hearing is completed and the judgment is to be given, or in any circumstance, if the judges have retired, the Chief Justice of the Supreme Court may ask the retired judges to continue as judges until the judgment is given in that case, to attend the court and write their judgments.
* The Chief Justice makes this type of proposal only after consulting the President.
129 Article - Court of Record :-
* Article 129 explains the jurisdiction of the Supreme Court's Court of Record.
* To preserve the judgments given by the Supreme Court in various cases in record form, and these act as guidelines for lower courts.
* The court has a special seal.
* Records, documents and evidence presented before the court are considered part of the Court of Record.
* Action can be taken against those who defy these under the contempt of court act.
* Individuals and organizations in the country must respect the Supreme Court's judgment.
* Otherwise, it is considered contempt of court and there is a possibility of imposing a fine of ₹2000/-, imprisonment up to 6 months.
130 Article
* The principal seat of the Supreme Court is in Delhi.
* However, with the permission of the President, the Chief Justice of the Supreme Court may conduct the court's proceedings in any part of the country.
* A Supreme Court bench of 25 judges in 2000 rejected a proposal made by the Union Cabinet to set up Supreme Court benches in Mumbai, Chennai and Kolkata.
* Recently, the Law Commission in its report has recommended setting up special benches in Delhi, Mumbai, Chennai, Hyderabad and Kolkata.
Supreme Court - Powers and Functions
* The Supreme Court is the highest court in the country.
* The jurisdiction of this court extends throughout the country.
* It has extensive powers.
* The central and state governments must mandatorily follow the Supreme Court's judgment.
* No one has the authority to challenge the Supreme Court.
* Alladi Krishnaswamy Iyer, a member of the Constituent Assembly, described that the extensive powers conferred on the Supreme Court in India are not conferred on any other court in the world, hence this is the most excellent court among all courts in the world.
* The powers of the Supreme Court are as follows:
- Original Jurisdiction or Preliminary Stage
- Appellate Jurisdiction
- Advisory Jurisdiction.
- Court of Record.
- Judicial Review
- Other Jurisdictions.
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