Supreme Court of India

The Constitution provides for the judiciary as a separate organ. The Constitution emphasizes on separation of power between the judiciary and legislature. An independent judicial system is vital to protecting the values of the Constitution. Whenever there exists a question on the interpretation of the Constitution, the Judiciary must interpret the Constitution. The Supreme Court of India is the final adjudicating authority in case of a dispute between the centre and the states or between two states. It is also the highest appellate authority for civil and criminal matters.

What is the Supreme Court of India?

The Supreme Court of India is referred to as one of the most powerful courts in the world. Unlike the courts in other jurisdictions, the Supreme Court of India is mighty in the sense that the judges of the Supreme Court have the power to appoint new judges to the Supreme Court without any hindrance from the executive and the Government. This necessarily helps to keep the judiciary independent and functioning without any fear.

Evolution of the Supreme Court

• The Supreme Court of Judicature in Calcutta was formed as a Court of Record, complete with full jurisdiction and authority, with the enactment of the Regulating Act of 1773.

• It was set up to consider, hear, and rule on any criminal complaints as well as to hear, consider, and rule on any lawsuits or other legal proceedings in Bengal, Bihar, and Orissa.

• King George III founded the Supreme Courts at Madras and Bombay in 1800 and 1823, respectively.

• The Supreme Courts in Calcutta, Madras, and Bombay, as well as the Sadar Adalats in Presidency cities, were dissolved by the India High Courts Act of 1861, which also established High Courts for many provinces.

• Prior to the Federal Court of India's establishment under the Government of India Act 1935, these High Courts held the unique distinction of being the highest courts in all matters.

• The Federal Court had the authority to hear appeals against decisions made by High Courts and resolve conflicts arising between federal states and provinces.

• The Indian Constitution was ratified on January 26, 1950, following India's independence in 1947. Additionally, the Supreme Court of India was established, holding its inaugural session on January 28, 1950.

• Every court on Indian soil must abide by the ruling made by the Supreme Court.

• It can overturn legislative and executive actions that are against the basic rights protected by the Constitution, the Union-States power balance, or the contents and scheme of the Constitution. This is known as judicial review authority.

Constitutional Provisions Related to the Supreme Court of India

• The Supreme Court is established under the Indian Constitution in Part V (The Union) and Chapter 6 (The Union Judiciary).

• Part V of the Constitution covers the structure, autonomy, authority, and processes of the Supreme Court in Articles 124 through 147.

• According to Article 124(1) of the Indian constitution, there will be a Supreme Court of India made up of the Chief Justice of India (CJI) and no more than seven additional judges unless Parliament passes a statute specifying a higher number.

• The Supreme Court of India's jurisdiction may be roughly divided into three categories: advisory, appellate, and original jurisdiction. Nonetheless, the Supreme Court possesses additional authority.

Composition of Supreme Court

• Thirty-one justices, including one chief justice, make up the Supreme Court at the moment.

• The 2019 Supreme Court (Judges) Bill has strengthened the court with the addition of four judges. The number of judges rose from 31 to 34, which included the CJI.

• The Supreme Court was originally intended to include eight justices—one chief justice and seven additional judges.

• They can be regulated by the Parliament.

Supreme Court Judge Qualification

Qualifications of a Supreme Court Judge are enumerated below:

• A person who has five years of experience as a judge in the High Court, though it is not necessary to have this five years of experience in a single High Court. For example, a person may practice in Allahabad High Court for two years and 3 years in Delhi High Court,

• He/she must have 10 years of experience as an advocate in the High Court,

• In the President’s opinion, a distinguished Jurist with a profound understanding of the law.

However, there has never been an appointment through the last criteria. Most of the appointed judges are people with experience as judges of a High Court. There have been fewer people who were appointed as judges based on their 10 years of experience as an advocate.

Appointment of Supreme Court’s Judge of India

The process of appointment of Supreme Court judges has gone through numerous changes by way of constitutional amendments and the rulings of the Hon’ble Supreme Court of India. Based on this, the process of appointment can be segregated into the following

• The procedure of appointment of Supreme Court judge before the 99th amendment;

• The procedure of appointment of Supreme Court judge after the 99th amendment;

• Current procedure of appointment of Supreme Court judge.

Before the passing 99th constitutional amendment, amending article 124(2) governing the appointment of Supreme Court judges stated that “every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal after consultation with such of judges of the Supreme Court and High Court in the states as the President may deem necessary for the purpose.”

Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall be consulted. This means that before appointing a Judge to the Supreme Court of India, the President was bound to consult with the Chief of India. However, the President didn't need to consult with the outgoing Chief Justice in case of appointment of a new Chief Justice.
It was a norm to appoint a senior Judge of the Supreme Court as the Chief Justice till 1973. This practice became an accepted convention which was followed by the President as well. This practice was discontinued when the Government appointed Justice A. N. Roy as the Chief Justice of India superseding three other senior judges of the Supreme Court. Owing to this there was a lot of debate around the appointment of judges to the Supreme Court and cases being filed before the Supreme Court.

With the passing of the 99th Constitutional Amendment amending Article 124(2) of the Constitution, it was introduced that every Judge of the Apex Court will be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointment Commission (NJAC) which was referred to as Article 124A

The composition of NJAC consisted of both judicial and executive representatives.

However, the Supreme Court while dealing with the case of Supreme Court Advocates on Record Association vs Union Of India, declared the 99th Constitutional amendment as “unconstitutional and void.” In the opinion of the court, NJAC altered the basic structure of the Constitution as it goes against the separation of powers. This led to the revival of the Collegium system for the appointment of Judges.

99th Constitutional Amendment

• 2014 saw the establishment of the National Judicial Commission Act (NJAC) under the 99th Constitutional Amendment Act. The National Judicial Appointments Commission is being established by the Constitutional 121st Amendment Bill, 2014, which has been introduced concurrently with the Bill (NJAC).

• In addition to listing the procedures that the NJAC must adhere to, the Bill also specifies how applicants must be recommended for appointment as Chief Justice of India and other Supreme Court judges, as well as Chief Justice and other justices of secondary courts.

• Only judges can nominate and remove judges in India under a system called the "Collegium." "Judges selecting Judges" is another name for this method. The system was implemented to strengthen and improve the scheduling procedure.

• The name "Collegium" is not included in the Constitution; rather, it was coined by the court to preserve its independent power to select justices.

• The 99th Constitutional Amendment is responsible for the establishment of the National Judicial Commission. By the passage of this amendment, the collegium method of appointing judges was replaced by the National Judicial Appointment Commission (NJAC).

• However, the Supreme Court upheld the collegium system, holding that the NJAC went against the fundamental structural principle and the independence of the court.

Tenure and Resignation of Supreme Court Judges

The tenure of a Supreme Court judge is not set by the Constitution. In this regard, it does, however, make the following three provisions:

• He will remain in office until he turns 65. Any inquiry about his age will be decided by the authorities and according to the procedure prescribed by Parliament.

• He can submit a resignation letter to the President.

• The President has the authority to remove him from office at the Parliament's proposal.

How are judges removed from office?

• The President may, by executive order, remove a justice from the Supreme Court. Only after receiving a presentation from Parliament in the same session about the removal, may the President issue an order for its removal.

• A special majority of each House of Parliament, that is, a majority of the members present and voting in that House as well as a majority of the House's overall membership, must approve the address. There are two reasons for removal: incompetence or demonstrated misbehaviour.

• The process of impeaching a Supreme Court judge and removing them from office is governed by the Judges Enquiry Act of 1968.

• Thus yet, no Supreme Court justice has been impeached. The Parliament rejected the impeachment motions of Justices Dipak Misra (2017–18) and V Ramaswami (1991–1993).

Removal of Supreme Court Judges of India

The process of removal of Supreme Court judges is known as impeachment. The word impeachment has no direct reference in the Constitution. However, article 124 provides for the removal of Judges of the Supreme Court in certain cases. The elaborate process of impeachment can be found in the Judges Inquiry Act 1968. The process of removal is as follows:
1. An impeachment motion is present in either house of Parliament. To initiate a motion of impeachment, at least 100 members of the Lok Sabha and 50 members of the Rajya Sabha must sign the motion before the notice is given to the speaker. The speaker will examine the allegations.

2. on the admission of the motion, the Speaker will form a committee consisting of the Chief Justice, other Judges, and an eminent jurist.

3. After receiving a report on the completion of the investigation. A motion for removal will be instituted and debated.

4. both houses of the Parliament have to adopt the motion.

5. Once the motion is adopted, it is sent to the President, who will issue an order for removal of the Judge.

Till now, no Judge has been impeached by the President.

Salaries and Allowances of Supreme Court Judges

• Under Article 125 of the Constitution, the Supreme Court justices shall receive the remuneration listed in the Second Schedule.

• Parliament regularly sets the Supreme Court judges' salaries, benefits, leave policies, and pensions. They cannot be reverted to their disadvantage after appointment unless there is a financial reason.

• 2018 saw an increase in the Chief Justice of India's pay from 1 lakh to 2.80 lakh per month and in judges' compensation from 90,000 to 2.50 lakh per month.

• Together with free housing, they receive a sumptuary stipend (which is paid to different ranks of staff in the Central Government to cover the cost of entertaining guests) and other advantages including health insurance, a car, and a phone.

• A pension equal to half of their final salary is due each month to chief justices and judges who have retired.

The Supreme Court's powers and jurisdictions

Jurisdiction refers to the extent of the Supreme Court's authority to hear cases and provide decisions. Original, appellate, and advisory are the three categories of jurisdiction that make up the Supreme Court.

Original jurisdiction

Some instances come under the Supreme Court's exclusive purview. It implies that the Supreme Court is the exclusive venue for the start or genesis of all such matters. It further implies that these cases cannot be filed in any other court. Below is a list of instances or conflicts that fall under the original jurisdiction:

• Conflicts involving one or more States and the Indian government.

• Disagreements exist between the Indian government and one or more states, as well as between those states and one another.

• Conflicts involving two or more States.

However, the following circumstances prevent its authority from extending:

• Any disagreement resulting from a pre-Constitutional treaty, covenant, engagement, sanad, or other like document.

• Any disagreement resulting from a treaty, agreement, etc. that expressly states that the aforementioned jurisdiction does not apply to such a disagreement.

• Water issues between states.

• Subjects referred to the Commission on Finance.

• Adjustment of specific costs and pensions between the states and the federal government.

• Regular commercial disputes involving the states and the centre.

• A state suing the Centre to recover damages.

Writ Jurisdiction

• The SC has the authority to impose directives, orders, or writs, including prohibition, quo warranto, habeas corpus, and certiorari writs.

• The person who feels wronged might go straight to the SC rather than through an appeal

• But the constitution also gives the HC the authority to make written orders, therefore this jurisdiction is not limited to the SC.

• Furthermore, the SC has less writ jurisdiction than the HC because the former can issue writs for the enforcement of legal rights while the latter can only do so in cases where a person's basic rights have been infringed.

Appellate jurisdiction

• It seems like an appeal against a lower court's decision. It is blessed with broad appellate authority.

• The Supreme Court is the highest Court of Appeal among all courts.

Its appellate jurisdiction can be separated into:

• Cases concerning constitutional interpretation, whether they be criminal, civil, or both; civil cases regardless of whether they raise constitutional issues; and criminal cases regardless of whether they raise constitutional issues

Advisory jurisdiction

The President may request the Supreme Court's opinion in the following two kinds of cases, as permitted under Article 143 of the Constitution:

• Regarding any legal issue or significant public truth that has emerged or is anticipated to emerge.

• Regarding any disagreement that stems from a pre-constitutional treaty, covenant, engagement, sanad, or other such documents.

The court is required to guide the second subject, but it may decline to do so in the first. Should the President receive counsel or an opinion from the Court, he has the option to accept or reject it. The President is not required to heed the Court's advice. Thus far, the President has consistently followed the Court's recommendation.

Power of Judicial Review

• When someone challenges a legislative or executive branch act or order, the judiciary has the authority to evaluate it and decide about its constitutionality. This process is known as judicial review.

• Articles 13, 32, 136, 142, and 147 of the Indian Constitution grant the Court Judicial Review authority.

• India has an autonomous judiciary possessing broad authority over legislative and executive actions.

• The theory that allows the judiciary to examine executive and legislative activities is known as judicial review. It is widely regarded as the fundamental framework of an independent judiciary (Indira Gandhi v. Raj Narain case).

• On the other hand, there are three types of judicial review: legislative action reviews, judicial decision reviews, and administrative action reviews.

• Thus, courts also must safeguard the proper distribution of power, as well as defend fundamental rights, human rights, and people's rights to life and liberty.

• Courts possess broad authority over cases, but they must use this authority very carefully and responsibly.

• These abilities are limited in the following ways: they can only be used to determine if the choice was made correctly in the first place; the decision itself is not allowed.

• It is exclusively assigned to our higher courts, the Supreme Court and the high court. cannot intervene in political or policy issues unless it is required.

Power of Judicial Activism

• It may be characterised as a way of thinking about judicial decision-making in which judges give weight to their individual opinions about public policy rather than constitutionalism.

• Maintains Constitutional Morality: The Naz Foundation Case, which used the idea of constitutional morality to overturn Section 377 of the Indian Penal Code and decriminalise homosexuality, is a significant case that creatively applied this notion.

• In contrast to widely held religious views, Justice Chandrachud decided in the Sabarimala judgement that women should be permitted admission into the Sabarimala shrine.

• In 2017, Triple Talaq was outlawed due to its extreme violation of the fundamental rights of Muslim women. If this law had originated in the executive branch or through the legislative branch, it would never have been approved. For example, Article 21 made the right to privacy a fundamental right.

• According to a People's Survey of India study, 80% of Indians believe the Supreme Court to be trustworthy. Even though it is not an elected body, maintaining the rule of law depends on the Supreme Court. For example, until Parliament passed legislation on the matter, the Whistle Blowers Act protected citizens against dishonest authorities and politicians under Article 142.

Case Law

S.P. Gupta vs Union of India

In the case of S.P. Gupta vs Union of India, also referred to as the first Judges Case. The apex court ruled that ‘consultation’ merely means “mere consultation of views” and that the President of India was not bound by the consultation. It gave the President the power to ignore the advice of the Chief Justice. This decision of the Supreme Court vested the power of appointment of Judges solely and exclusively in the Central Government, and the role of Chief Justice was merely consultative. Therefore, this case gave the upper hand to the executive in the appointment of Judges.

Supreme Court Advocates on Record Association vs UOI

Subsequently, the Supreme Court, while dealing with Supreme Court Advocates on Record Association vs UOI, also referred to as the Second Judges Transfer case, overruled its earlier judgment in S.P. Gupta vs Union of India by a majority of 7:2. It gave the primacy to Chief Justice of India in case of appointment of Judges to the Supreme and High Court. The court opined that the appointment of Chief Justice shall exclusively be based on seniority. It ensured that there does not exist any political favour in case of appointment of Judges. This case also led to the formation of the Collegium System.

Third Judges Case

After this, the Supreme Court dealt with the Third Judges case, which was technically not a case but a presidential reference under Article 143 of the Constitution. The President sought clarification on the Collegium System. The Supreme Court clarified that the Chief Justice ought to make recommendations only after consultation with four senior judges. This recommendation should necessarily be in writing. It also gave the discretion to the President to send back the recommendation, but on a recommendation of the same names by the collegium, the President is bound to accept the recommendation.

The Current process for appointment of Supreme Court Judges

While dealing with the case of Supreme Court Advocates on Record Association vs Union of India, the Court revived the Collegium system existing before the 99th Constitutional amendment. However, the Court took a step forward to reform the old collegium system, which led to the enactment of the memorandum of procedure, which regulated the functioning of the Collegium system. Salient features of MOP are as follows:

• The MOP may indicate basic eligibility criteria for the appointment of judges, such as the minimum age.

• It also brings transparency to the process of appointment, it mandates that the MOP for appointment is uploaded on the website.

• It also provides for the establishment of the secretariat for better management of the collegium system.

Why is the Supreme Court's independence important?

Granville Austin claims that the Constituent Assembly deliberated extensively on the subject of the court's independence as well as two other related matters: the Supreme Court's authority and the extent of judicial reviews.

• It serves as the Constitution's last arbiter and protector.

• The people's fundamental rights are protected by the Supreme Court.

• It also serves as the nation's supreme and last arbiter of interpretation for general law.

• In both civil and criminal cases, it is the highest court of appeals.

• An unbiased, independent body must resolve disputes between the federal government and the states to uphold the supremacy of the Constitution.

• The judiciary as an institution has to be free from political interference and pressure to continue being powerful.

Conclusion

The process of appointment of judges needs to be devoid of any kind of hindrance from the executive so that it does not lead to political favouritism in the appointment of judges. Therefore, the Collegium system was developed. Before the advent of the collegium system, the senior judge was appointed as the Chief Justice. However, this was not mandatory, and the President made certain appointments contrary to the same as well.

Time and again, questions have also been raised about the functioning of the collegium system. Therefore, the enactment of MOP is also a welcomed step. However, the issues of nepotism and lack of diversity are still raised against the appointment of Judges and this calls for a further reform in the Collegium system.