Table of Contents

Supreme Court

This article deals with ‘Supreme Court.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

Article 124 to 147 of Part V deals with Supreme Court
Unlike USA (& other Federations) , India has single system of courts for central and state laws with Supreme Court at top
Single system was adopted from Government of India Act,1935
Inaugurated on 28/1/1950 , succeeded Federal Court but was different in sense that it has higher jurisdiction and highest Court of Appeal ( earlier British Privy Council was highest court of appeal)
Supreme Court is final interpreter & guardian of Constitution and guarantor of Fundamental Rights.

Organisation of Supreme Court

At present, Number of Judges = 31(1+30) (Originally 8(1+7))
Number of judges can be changed by Parliament via Act => Supreme Court (number of judges) Act was passed for this

Judges of Supreme Court

Appointment of Judges

Dealt by Article 124(2) – Chief Justice & Judges to be appointed by President
- Chief Justice of India (CJI) to be appointed by President after consultation with judges of Supreme Court & High Court.
- Judges to be appointed by President after consultation with Chief Justice and Judges
Note : Term used is ‘Consultation’ and not ‘Concurrence’ .

Till emergency, provisions didn’t present any difficulty and worked smoothly .

Do Consultation means Concurrence + Issue of Transfer of Judges

In Constituent Assembly Debates when motion was moved to replace word Consultation with Concurrence, Dr Ambedkar replied , “We are not giving Veto Power either to the Executive or to the Judiciary. ”

Till emergency , provisions of Constitution presented hardly any difficulty. Problems arose during the Emergency

Case 1 : SP Gupta vs Union of India (First Judge Case), 1982 : Supreme Court ordered that word used is Consultation and not Concurrence. Hence, advise of Chief Justice India isn’t binding.

Case 2 : Advocates on Record Association vs Union of India (Second Judges Case) , 1994 : 9 Judge Bench overruled previous decision

Chief Justice India is bound to consult 2 Senior most Judges => Collegium System established

Case 3 : Re Presidential Reference (Third Judges Case) , 1998 : In 1994 Judgement, nothing was said about how consultation would take place between Chief Justice of India and 2 Senior Judges . There were allegations that other Judges of Supreme Court were not effectively consulted

Chief Justice of India is bound to consult 4 Seniormost Judges of Supreme Court .
Recommendation of Chief Justice of India & 4 other judges are to be conveyed in writing to President
For Appointment of Judges of High Court, consultation with 2 Seniormost Judges of Supreme Court
If any two or more Judges gave adverse opinion, no recommendation can be made
Although President can make objection but if same names are again recommended , then President has no discretion.

Appointment of Chief Justice of India

1950-73	Seniormost judge of Supreme Court appointed Chief Justice
1973	AN Ray was made Chief Justice superseding 3 senior judges
1977	MU Beg made Chief Justice superseding a senior judge
2nd judges case	Seniormost judge should be appointed as Chief Justice

Side Topic : Issues with Collegium System

Constitutionality:
- Constituent Assembly after adequate debates rejected the proposal to vest the Chief Justice with veto power over appointments.
- According to Law commission , Collegium is a clear violation of Article 74 of the Constitution which demand President to act on the aid and advice of the Council of Ministers.
Lacks Transparency: Collegium system is non-transparent and closed in nature as there exists no system of checks and balances
Uncle Judges Syndrome: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
Disturbs balance of power between Executive and Judiciary and destroys the Checks and Balances
Collegium system was asserted when we had weak Central governments in the 1990s. Now such situation is not there .

Conclusion : Justice DY Chandrachud had famously said: ‘Above all, sunlight is the best disinfectant.’ The sunlight should also percolate through various layers of the judiciary so that the decisions taken on the administrative side are viewed with complete trust.

Qualification to become Judge of Supreme Court

Person should be Citizen of India
Person should be
- Judge of High Court for 5 years or
- Advocate of High Court or 10 years or
- Distinguished Jurist in President’s opinion
No minimum age requirements

Tenure of Supreme Court of India

Till they attain age of 65 years (62 years in case of HC judges)

Removal of Judges

According to constitution, Judge of Supreme Court can be removed by Parliament with special majority and assent of President on ground of ‘proved misbehaviour’ or ‘incapacity’

Judges Inquiry Act regulate the procedure

Removal motion signed by 100 members in case of Lok Sabha or 50 in RS is submitted to Speaker
Speaker may admit motion or refuse it
If admitted, then a committee is formed under Chief Justice /Judge of Supreme Court of India ,Chief Justice of High Court and distinguished jurist
If committee found judge to be guilty then procedure in Parliament starts
Motion to be passed in both houses by special majority and then assent of President is required

Till now no judge removed and only one case of proceeding of V Ramaswami in 1993 was initiated but failed to get passed by Special Majority.

Issue with the Removal Process

Words ‘Proved Misbehaviour’ or ‘Incapacity’ has not been defined anywhere in the Constitution
Difficult to Accomplish (2nd ARC) : Impeachment provisions have turned out to be impracticable . There are five stages, all of them difficult to accomplish. Inadequacy of the existing mechanism was affirmed in the K Veeraswami case, 1991(Punjab High Court Judge) and V Ramaswami even after adverse findings of the Judges’ Committee
It also involves political considerations. For example, the Congress abstained from voting on the resolution when the motion for removal of Justice V. Ramaswami was moved in 1993 . As a result, although 2/3rd present and voting , voted for impeachment but it fell short of 1/2 of total votes
The Judge under investigation is not prohibited from discharging his duties in court of law.
There is no process short of removal which can be undertaken to make them accountable

Way Forward

Judicial Standards and Accountability Bill (JSAB), 2012 could be revived.
Justice J. S. Verma advised a Model Code of Conduct for judges
NCRWC headed by Justice Venkatachaliah also spoke against frequent misbehaviours seen in conduct of Judges and need to have mechanism short of impeachment to control it.

April 2019 : group of Opposition MPs submitted a notice for then Chief Justice Dipak Mishra’s impeachment to the Rajya Sabha Chairman. However, Vice president of India/ Presiding Officer (PO) in Rajya Sabha has rejected the impeachment motion

Special judges

Ad hoc judge	When there is lack of quorum in Supreme Court , Chief Justice with assent of President can appoint judge of High Court as judge of Supreme Court temporarily. He enjoys all privileges of Supreme Court judge during this period
Retired judge	Can also appoint retired judge of Supreme Court or High Court to act as judge of Supreme Court temporarily . Privileges of judge of Supreme Court are given but not deemed to be Supreme Court judge

Seat of Supreme Court

Constitution declares Delhi to be seat of Supreme Court
Chief Justice can appoint other places as seat of Supreme Court in consultation with President . But this provision is only optional and not compulsory.

Procedure of court

Supreme Court can make its own procedures with approval from President
Constitutional cases & cases referred to Supreme Court by President under Article 143 decided by(minimum) 5 judge bench
All other cases to be decided by 3 Judge bench
Judgement delivered in open court by majority vote (although Judge not agreeing with the Majority view is entitled to deliver a dissenting judgement or opinion)

Note : Chief Justice of India is the MASTER OF ROASTER . Bench headed by CJI Deepak Misra gave this judgement in 2018.

Independence of Supreme Court

Balmukand Shah vs State of Bihar (2000) – Independence of Judiciary is part of basic structure of the Indian Constitution.

How it is ensured

Mode of appointment of judges to maintain independence of judges
Security of tenure to Judges
Fixed service conditions & can’t be reduced to their disadvantage except during financial emergency
All expenses charged on consolidated fund of India
Conduct of judges can’t be discussed in houses of Parliament except during impeachment
Ban on practice after retirement
Power to punish Contempt of Court to maintain dignity and honour of Supreme Court
It’s jurisdiction cant be curtailed

Jurisdiction of Supreme Court

1 . Original jurisdiction

As Federal Court , it decides disputes between Indian Federation & this is exclusive & original jurisdiction
1. Center & one or more states
2. Center & any state or states on one side
3. Between two or more sides

But this doesn’t extend to any dispute arising from

Preconstitution treaty & agreement
Interstate water disputes
Matter referred to Finance Commission
Ordinary dispute of commercial nature between Center & States

It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases. Neither the High Courts nor the lower courts can deal with such cases.

2. Writ jurisdiction

Supreme Court is guarantor & defender of Fundamental Rights
And for that, it can issue writs ie Mandamus, Habeas Corpus, Prohibition, Quo Warrento & Certiorari under Article 32
Writ Jurisdiction is Original but not exclusive ie High Court can also issue writs
Writ Jurisdiction of High Court is greater than Supreme Court but Parliament is empowered to confer on Supreme Court power to issue writs for other purposes too
Supreme Court can depart from ordinary adversarial procedure to prevent procedural technicalities from upholding Fundamental Rights
Under Writ Jurisdiction, Supreme Court has flexibility of Locus Standi too . Supreme Court has used this to invent Public Interest Litigation.

3. Appellate jurisdiction

In following cases :-

Constitutional Matter	If High Court certifies that case involves substantial question of law that require interpretation of constitution
Civil Matter	If High Court certifies that – Case involves substantial question of law of general importance . – Question needs to be decided by Supreme Court .
Criminal Matter	If High Court has – Reversed the order of acquittal & sentenced him to death/life/10 years imprisonment – Taken before itself any case from subordinate court & accused person & sentenced to death/life/10 years imprisonment – Certified that case is fit for appeal to Supreme Court

4. Advisory jurisdiction

Article 143 – President can seek opinion of Supreme Court in two matters
- On any question of law or fact of public importance which has arisen or likely to be arisen
- On any dispute arising out of any preconstitution treaty, agreement etc

First time Supreme Court may or may not but second time, it is bound to give advice but advice is not binding on President => so far 15 times this is used (note name of cases for prelims)

Delhi Laws Act in 1951
Kerala Education Bill in 1958
Berubari Union in 1960
Sea Customs Act in 1963
Keshav Singh’s case relating to the privileges of the Legislature in 1964
Presidential Election in 1974
Special Courts Bill in 1978
Jammu and Kashmir Resettlement Act in 1982
Cauvery Water Disputes Tribunal in 1992
Rama Janma Bhumi case in 1993
Consultation process to be adopted by the chief justice of India in 1998
Legislative competence of the Centre and States on the subject of natural
gas and liquefied natural gas in 2001
The constitutional validity of the Election Commission’s decision on
deferring the Gujarat Assembly Elections in 2002
Punjab Termination of Agreements Act in 2004
2G spectrum case verdict and the mandatory auctioning of natural
resources across all sectors in 2012

Special Leave Petition

Article 136 provides appeal by Special Leave

Supreme Court can grant in its discretion Special Leave to Appeal from any judgement in any matter passed by any court or tribunal . There are 4 provisions regarding this
- It is Supreme Court’s discretionary power . It can’t be challenged as matter of right
- Can be granted in any judgement whether final or interlocutory
- Can be granted to any matter i.e. constitutional, civil, criminal, labour, revenue
- Can be granted against any court or tribunal & not necessarily High Court (except military court)
SC comment – it is extra ordinary power vested by Constitution in Supreme Court . Hence, should be exercised sparingly & with caution & in special extra ordinary condition

Ill effects of this Provision

Increased Pendency of Cases in Supreme Court : Supreme Court’s pendency has reached 65,000 in arrears due to accepting cases through Special Leave Petition route .
Appreciation and Reapprciation of evidences : It might be true that the quality of judgements of the lower courts leaves much to be desired. But there should be some finality somewhere
The number of appeals entering the court through this gateway has exceeded by far the writ petition route. Moreover, Public Interest Litigation benefit millions of people, who cannot approach the court directly.

Article 142

Article 142 : Supreme Court may pass any decree or make any order as is necessary for doing complete justice
Word ‘Complete Justice’ is not defined .

Evolution of Article 142

Early	Supreme Court used it to bring complete justice to various deprived sections of society or to protect environment in cases like 1. Taj Mahal Case : Ordered for cleansing of the Taj Mahal 2. Under-trials Case : Ordered to release under-trials who were rotting in jails
Inflection Point	Bhopal gas tragedy Case : Supreme Court felt a need to deviate from existing law to bring relief . Ordered that to do complete justice, it could even override the laws made by Parliament . Thus, Supreme Court of India placed itself above the laws made by Parliament
After	Using this article, Supreme Court has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’ 1. Coal block allocation case, 2014 : Allocation of Coal Blocks granted since 1993 were cancelled 2. Ban on the sale of alcohol along national and State highways, 2017

Cause of Concern

Using it for Unlimited power – This is extraordinary power to be used in extraordinary situations. But SC is using this frequently .
Affects rights of citizen – judgments like Coal Block Allocation , Alcohol Sale Ban on Highways etc affect rights of accused and render lakhs of people unemployed
Against Separation of Power – It is against the doctrine of ‘separation of powers’

Court of Record & Contempt of Court

Two powers are given under Court of Record

Judgements, proceedings & acts of Supreme Court are recorded for perpetual memory & testimony. They can’t be questioned when produced before any court
Has power to punish for contempt of court with imprisonment of 6 months or fine upto ₹2,000 or both .

Side Topic : Contempt of the court

Contempt of Courts Act, 1971 define and limit the powers of certain courts . Contempt of court means Civil Contempt or Criminal Contempt.

Civil Contempt	Civil contempt means wilful disobedience to any judgment or wilful breach of an undertaking given to a court.
Criminal Contempt	Criminal contempt means the publication of which – Lowers the authority of any court; – Interferes with the due course of any judicial proceeding; – Interferes with the administration of justice

Note : Section 19(2) establish reasonable restrictions on speech, on various grounds, including contempt of court.

Need of such Powers

Contempt provisions have been provided to ensure that the Judges do not come under any kind of pressure either from media criticisms or by general public opinion and discharge their duties without any kind of fear and favour

Criticism of Contempt of Court power

Article 19(1)(a) vs Contempt of Court Issue. People have right to know if there is any malfunctioning in Judiciary but Contempt provisions are used to muzzle free speech . Eg : Shillong Times editor found guilty of contempt of court for the publication of an article on the perks and facilities for retired judges and their families.
Contempt of court law is hangover from British rule & derived from an era when king used to decide the case himself.
Even England, in 2014, after a recommendation by its Law Commission, the country altogether abolished this act.
In India, judiciary has been given vast powers which are considered domain of legislature & executive. When judges have such a vast powers , it is difficult to expect people to be silent on these matters.
Pandit Thakur Das Bhargava in the Constituent Assembly spoke against Contempt of Court provisions arguing that it will be used by Courts to muzzle free speech which is the case now.
Conflict of Interest : Judges sit in making judgement in which they themselves are involved which is clear case of Conflict of Interest .

Contempt powers should be used in rare cases & in such a way that they don’t violate Right to Freedom of Speech while also ensuring independence of the Judges. Healthy criticism within limits is good for democracy and prevents stagnation in any democratic institutions.