Constitution of Supreme Court of India

CONSTITUTION OF SUPREME COURT OF INDIA

The Guardian of the Constitution

The essence of a federal Constitution is the division of powers between the Central and State Governments. The division is made by a written Constitution which is the Supreme Law of the Land. Since language of the Constitution is not free from ambiguities and its meaning is likely to be interpreted differently by different authorities at different times. It is but natural that disputes might arise between the Centre and its constituent units regarding their respective powers.

In order to maintain the supremacy of the Constitution, there must be an independent and impartial authority to dicide disputes between the Centre and the State or the States inter se.

This function can only be entrusted to a judicial body. The
Supreme Court under our Constitution is such an arbitrator. It is the final interpreter and guardian of the constitution.

The Supreme Court is also the guardian of the Fundamental Rights of the People.

Composition of the Court:

The Supreme Court of India consists of a Chief Justice and, until Parliament may by law prescribes a large number, not more than seven other Judges. Thus the Parliament may increase this number by law.

Originally, the total number of Judges was seven but in 1977 this was increased to 17 excluding the Chief Justice.

In 1986 this number has been increased to 25 excluding the Chief Justice.

In 2009 the number has been increased to 30 excluding the Chief Justice.

The Constitution does not provide for the minimum number of Judges who will constitute a Bench for hearing cases.

Appointment of Judges:

Position before 99th Amendment of Constitution:

The Provisions of the appointment of Judges of the Supreme Court before 99th Amendment of the Constitution which received the assent of the President on 31st December 2014 were as follows:

The Judges of the Supreme Court were appointed by the President. The Chief Justice of the Supreme Court was appointed by the President with the consultation of such of Judges of the Supreme Court and the High Courts as he deemed necessary for the purpose.

But in appointing other Judges, the President would always consult the Chief Justice of India. He might consult such other Judges of the Supreme Court and High Courts as he might deem necessary.

In appointment of Judges the Executive under this Article was required to consult persons who are ex-hypotheses well qualified to give proper advice in matters of appointment of Judges.

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Under Article 124(2) the President, in appointing other Judges of the Supreme Court was bound to consult the Chief Justice of India.

In appointing the Chief Justice of India he was not bound to consult anyone. The word ‘may’ used in Article 124 made it clear that it was not mandatory on him to consult anyone.

Appointment of the Chief Justice of India:

The majority held that the appointment to the office of the Chief Justice of India should be made on the basis of seniority that is the seniormost Judge considered suitable to hold office be appointed as the Chief Justice of India.

The important guidelines laid by the Court were the following:

Individual initiation of high constitutional functionaries in the matter of Judges appointment reduced to minimum. It gave primacy to the Chief Justice of India but put a rider that he must consult his two colleagues.

Constitutional functionaries must act collectively in judicial appointments.

Chief Justice of India was given the final say in transfer of Chief Justice and Judges of High Courts.

Transfers of Chief Justices and Judges of High Courts could not be challenged in Courts.

Appointment of the Chief Justice of India by seniority.

No Judge could be appointed by the Union Government without consulting the Chief Justice of India.

Fixation of the strength in High Courts was justiciable.

Position after 99th Amendment of Constitution:

The Constitution (Ninety-ninth Amendment) Act, 2014 amended Articles 124(2), 127 and 128. It inserted Articles 124A, 124B and 124C.

According to the amended Article 124(2), every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in Article 124A.

After this amendment, no consultation is required by the President with the Judges of the Supreme Court and the High Court. The first proviso which provided the consultation with the Chief Justice of India in case of appointment of a Judge other than Chief Justice of India has been omitted.

The Provisions of National Judicial Appointments commission:

Article 124A provides:

1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following namely:

  • The Chief Justice of India, Chairperson
  • Two other senior Judges of the Supreme Court next to the Chief Justice of India-Members
  • The Union Minister in charge of Law and Justice-Member
  • Two eminent persons to be nominated by the Committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People-Members

Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women

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Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.

2)       No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.

Functions of National Judicial Appointments Commission:

Under Article 124B, the National Judicial Appointments Commission shall have following duties:

To recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts,

To recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court

To ensure that the person recommended is of ability and integrity.

Qualification of Judges :

a person to be eligible to be appointed as a Judge of the Supreme Court must be

  1. He is a Citizen of India
  2. He has Judge of High Court at least for five years.
  3. He has been for at least ten years an advocate of a High Court.
  4. Is in the opinion of the President, a distinguished jurist (Art. 124(3)

Every person who is appointed as a Judge of the Supreme Court before entering upon his office has to make and subscribe an oath or affirmation before the President, or some other person appointed in that behalf by him [Article 124(6)]

Tenure and Removal of Judges:

A Judge of the Supreme Court shall hold office until he attains the age of 65years. The age of the Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide [Art. 124(2-A)]. A Judge may, however resign his office by writing to the President [Article. 124(2)(a)]

Removal of Judges: Article 124 (4) (5):

Judges (Inquiry) Act, 1968 – The Parliament passed Judges Inquiry Act in 1968 under which the investigation into misbehaviour or incapacity of a Judge shall be done by a Committee Constituted by the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha, as the case may be, if the Speaker or Chairman admits the motion after consulting such persons as he thinks fit and after considering such materials, if any, as are available such persons as he thinks fit and after considering such materials, if any, as are available to him. The Act makes the provisions of a Committee consisting of three members.

A Judge may be removed from his office by an order of the President only on grounds of proved misbehaviour or incapacity. The order of the President can only be passed after it has been addressed to both Houses of Parliament in the same session. The address must be supported by a majority of total membership of that Houses and also by a majority of no less than two thirds of the members of that House present and voting [Article 124, clause (4)].

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Acting Chief Justice:

When the office of the Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of his office shall be performed by such one of the other Judges of the Supreme Court as the President may appoint. [Article 126]

Salaries and Allowances:

Prior to the Constitution (54th Amendment) Act, 1986, Article 125(1) provided that the Judges of the Supreme Court shall be paid such salaries as were specified in the Second Schedule of the Constitution.

Jurisdiction of the Supreme Court:

1) A Court of Record:

Article 129 makes the Supreme Court a ‘Court of record’ and confers all the powers of such a court including the power to punish for its contempt.

A Court of Record is a court whose records are admitted to be of evidentiary value and they ate not to be questioned when they are produced before the court.

This extraordinary power must be sparingly exercised only where the public interest demand.

The Contempt of Courts Act, 1971 defines the powers of courts for punishing contempt of courts and regulates their procedure. It also provides for judges to be tried for Contempt of  Court.

A Judge of Magistrate or other person acting judicially shall be liable for contempt of his own court or of any other court in the same manner as any other individual is liable.

However, this section shall not apply to any observations or remarks made by him regarding a subordinate Court in an appeal or revision pending before him.

The following acts or publications will not amount to contempt

  • Innocent publications and its distribution
  • Fair and accurate report of judicial proceedings
  • Fair criticism of judicial act
  • Complaint made in good faith against presiding officers of subordinate courts
  • Publication of fair and accurate report of a judicial proceeding before a court sitting in camera.

Original Jurisdiction Article 131:

The Supreme Court has original jurisdiction in any dispute:

  • Between the Government of India and one or more States
  • Between the Government of India and any State or States on one side and one or more other States on the other.
  • Between two or mote states.

Appellate Jurisdiction – Article 132:

The Supreme Court is the highest Court of Appeal in the country.

The Appellate jurisdiction of the Supreme Court can be divided into four main categories:

  • Constitutional matters
  • Civil matters
  • Criminal matters
  • Special leave to appeal

References:-

D.D. Basu, Commentary on India Constitution, Justice. S.S. Subramani

D.C. Jain, Constitution of India by V.N. Shkula (1969)

Dr. J. N. Pandey, Constitutional Law of India (1969)

Sujata.V. Manohar, T.K. Tope’s Constitutional Law of India (2010)

Author: R. Shanmuga Sundaram,
LLB (Hons) 2nd Year - Chettinad School of Law

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