Supreme Court – Indian Polity Notes

Table of Contents

Lord Bryce has famously said, “There is no better test of excellence of governance than working of its judicial system”.

Members of the constituent assembly were mindful of this. Having seen, a biased, racially discriminatory judiciary during British rule, which paid little to no regard to safeguarding the rights of the Indian population. The constituent assembly had resolved to create a strong judiciary.

Nature of judiciary in India:

The constitution has created independent and integrated judicial system for India.
Integrated in the sense both central and state laws can be enforced or questioned for constitutionality in the same court system.
Integrated judiciary is also known as hierarchical judiciary as appeal against orders of subordinate courts lies in higher courts. Higher courts exercise control over lower/subordinate courts.
Independent in the sense, the constitution provides for separation of power among three branches of the government, none of which can be subordinated to others.

Importance of Supreme Court:

Supreme Court is apex court of India. Final court of appeal in India, appeal against orders of any court/tribunal lies in the Supreme Court of India.
It can issue writs for enforcement of fundamental rights of citizens.
Supreme Court has power of judicial review under article 13, through which it can check constitutionality of any act of the Union or the States.

History of the Supreme Court:

The Government of India Act 1935, provided for establishment of Federal Court of India at Delhi. Which was to act as apex court in British India.
In 1950, when constitution came into effect. The Federal Court was replaced by the Supreme Court of India.

The Supreme Court of India:

Constitution provides for the establishment of the Supreme Court of India under article 124.
It also provides for it shall consist of Chief Justice of India and until parliament made by law determines seven other judges.

Strength of Supreme Court:

Under article 124(1), Supreme Court to have the Chief Justice of India and seven other judges until parliament by law determines.
Parliament enacted Supreme Court (Number of Judges) Act and increased the strength of judges from original 8 to 33 (excluding Chief Justice of India).
At present Supreme Court has 33 judges excluding Chief Justice of India after Supreme Court Amendment Bill 2019 was passed.
There is no fix number of judges to be appointed in Supreme Court. Changes in strength is done by Central Government on request of CJI asking augmentation in strength of judges.

Appointment of Judges (Article 124):

Qualifications for Supreme Court Judges:

Citizen of India.
Must have acted as judge of High Court or two or more High Courts in succession for atleast 5 years OR
Acted as Advocate in High Court or two or more High Courts in succession for atleast 10 years. OR
In opinion of the President, he/she is distinguished jurist.

System of Appointments:

Judges of supreme court are appointed by the President.
Condition: It is mandatory for the President to consult members of judiciary. It is further mandatory in case of judges other than CJI, CJI must be consulted.
- Constitution doesn’t prescribe minimum number of judges which the President has to consult.
- The President can consult judges of both Supreme Court and High Court.
Constitution gives higher weightage to views of judiciary than executive.

Evolution of Collegium System:

Sankal Chand Case: Supreme Court interpreting term ‘consultation’ held that consultation with judiciary is non-binding on the President.
First Judges Case/S P Gupta vs Union of India Case 1982: SC again reiterated its position holding that consultation is non-binding.
Second Judges Case/SCAOD Association vs Union of India 1994: SC held that consultation is binding. It gave primacy to views of CJI and CJI will consult 2 senior most judges.
Third Judges Case/Presidential Reference under article 143 1998:
1. Opinion of collegium shall be binding.
2. Judgement balances position of CJI with collegium.
3. CJI will consult 4 senior most judges.
4. For appointments, consent of 4 judges is needed which must include the CJI.
5. If government sends recommendations back to collegium, it will reconsider the recommendations.
6. If collegium sends same names again, it will be binding on government (read President) to appoint those as judges of SC.

Term of office & Removal:

According to article 124, parliament has power to determine age requirements. There is no as such entry age for SC judges.
SC judges can hold office until they reach 65 years of age.
During their tenure they can step down in following ways:
- By addressing resignation letter to the President.
- By removal proceedings initiated by the Parliament under articles 124, 217, 218 and Judges Inquiry Act 1968.
- By death

Protection of Independence of Judiciary:

Independence of Judiciary is ensured by following provisions:

Appointment of Judges is done by the President in consultation with judiciary (since not a single individual is involved appointments cannot be influenced).
Judges are provided with security of tenure.
Expenditure of judiciary is charged on consolidated fund of India, which means judicial expenses are beyond scope of parliamentary scrutiny.
Article 50, provides for separation of Judiciary from executive.
Judiciary has power to penalize for contempt.
Discussion on conduct of judges cannot be held in parliament unless resolution for his removal is under consideration [Article 121].

Jurisdiction of Supreme Court:

Jurisdiction of Supreme Court can be categorised into – Original, Writ and Appellate.

Original Jurisdiction (Article 131):

It deals with disputes of federal nature.
In such disputes private party cannot be involved.
Under article 262, original jurisdiction of SC is excluded in case of inter state water disputes.
One category of disputes are also excluded which arrives from treaties entered before commencement of the constitution. It will be dealt under article 143.

Writ Jurisdiction:

Supreme Court can issue writs for enforcement of fundamental rights. It is original jurisdiction but not exclusive jurisdiction.

Under article 139, Parliament can authorise issue writs of similar nature (as per article 32) for purpose other than enforcement of fundamental rights.

Appellate Jurisdiction:

Interpretation of Constitution (article 132):

There shall be appeal in SC from any judgement or order of HC in any civil, criminal or other proceedings where HC gives certificate that case involves substantial question of law as to the constitution.

It means there is difference of opinion between two high courts over interpretation of constitution

Appeal in civil cases (Article 133):

In case HC gives certificate, in context of civil proceedings that matter involves:

Substantial question of law of general importance, plus in opinion of high court matter should be decided by the Supreme Court.

Appeal in criminal (article 134):

There are two types of situations:

Appeal with certificate from High Court and Without certificate.

Without Certificate from HC:

Where HC has given death sentence.
Where HC has given life imprisonment or where imprisonment is not less than 10 years.

In rest of the cases, person can approach SC only with certificate.

Advisory Jurisdiction (Article 143):

President can take the advice of the SC in following situations:

Question of law/fact that has arisen or likely to arise.
Question is of such nature and importance that it is needed to obtain opinion of SC.
It is neither binding of President nor binding on the SC to give except in case of pre – constitutional treaties.

Notwithstanding above mentioned categories, parliament can further enlarge the jurisdiction of Supreme Court for any other matter in the union list.

Changes in position of SC post independence:

In independent India, constitution was drafted by then brilliant minds of constituent assembly.
During early years of independence, Supreme Court had taken stance on non interference as it didn’t wanted to question the wisdom of then political leader who were members of erstwhile constituent assembly.
During era of non-congress governments, Supreme Court gained prominence and overturned several of its earlier judgements paving way for broader interpretation of rights of citizens.
Post Kesavananda Bharati Case, Supreme Court gave Basic Structure Doctrine. Which made Supreme Court custodian of the constitution. As it has power to strike down any amendments which violates the doctrine of Basic Structure.
The separation of power being enshrined in DPSP is in practice is followed only in case of delivery of justice and executive, legislative interference continued. Supreme Court, via three judges case came up with collegium system which upheld judicial independence.
It can be said without a doubt, SC has performed as constitution has envisaged. It has acted as torch bearer of rights of citizenry.

Types of Advocates/Lawyers:

As per Advocates Act of 1961, there are only two types of recognised lawyers: Senior Lawyer(designated by the Court) and Other Lawyers.In SC there is third category of Lawyers known as Advocates on Record. These advocates shall have minimum 5 years of experience along with that they shall clear Supreme Court’s Special Examination.

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