The Supreme Court

Union Judiciary

"Justice delayed is justice denied and justice hurried is justice buried"

• Part V - Union
• Chapter IV - Judiciary

Though the Indian polity is federal in nature, the Constitution of India provides for a single unified judiciary, i.e., in India judiciary is a single system which is hierarchically and organically linked.

Hierarchically organised because Supreme Court exercises control over the High Courts and the High Court exercises control over the respective Sub-ordinate courts.

Organically linked because the judges/practitioners of the Sub-ordinating courts are elevated and appointed as the judges of High Court who in turn appointed as the judges of Supreme Court.

Major functions of the Supreme Court 

1. Supreme Court acts as the primary protector of the Fundamental Rights of an individual that are guaranteed to him by the constitution of India (by issuing writs as well as by giving deliberations to the fundamental rights like right to privacy as fundamental right under right to life.
2. Supreme Court safeguards the supremacy of the constitution (by judicial review of the act of the parliament and thus upholds the constitutionalism).
3. Supreme Court is the highest court of appeal in India (The president is not the court of appeal).
4. Supreme Court is the sole arbitrator of the disputes between centre and the states or among the states over distribution of power and thus protects the federal nature of the constitution of India.
5. Supreme Court has a consultative role where it acts as advisor to the president on issue of law or fact which is of public importance.

Qualification to become a judge of Supreme Court 

1. Citizen of India
2. Has been for at least 5 years a judge of High Court or two or more such courts in succession or
• Has been for at least 10 years an advocate in a High Court (or above, i.e., in Supreme Court) or two or more such courts in succession. or 
• He is a distinguished jurist in the eyes of the president

Note - To become a judge of a Supreme Court, there is a qualification of a distinguished jurist but in case of High Court, there is no such qualification of a distinguished jurist.

Appointment of judges - Under Article 124(2), Chief Justice of India (CJI) is appointed by the president and in this process he may consult with other judges of the Supreme Court and High Court as he considers necessary.

But while appointing the other judges of the Supreme Court, president may consult with the CJI and other judges as he deems it necessary.

• S.P. Gupta vs Union of India Case 1982 (1st Judges Case) 

Supreme Court held that the opinion of the CJI in the matter of appointment of judges of the Supreme Court, High Court and the transfer of High Court judges is not binding upon the president.

However an effective consultation must take place between the president and the CJI, i.e., consultation should be in writing with all the documents and facts referred.

• Supreme Court Advocates on record association vs Union of India Case 1993 (2nd Judges Case) 

Supreme Court overruled its earlier decision and held that in the process of appointment of judges in Supreme Court and High Courts or transfer of High Court judges, the opinion expressed by the CJI in this regard shall enjoy prominence because what CJI is suggesting is not his personal view rather it is the view of judiciary expressed through the CJI.

However to represent the view of the judiciary CJI himself must consult with a minimum 2 seniormost judges of the Supreme Court that too in writing (it led to the introduction of Collegium System).

President may refer the opinion of the CJI for his reconsideration but the opinion of the CJI after such reconsideration shall be binding upon the president.

• Re-appointment of Judges Case 1998 (3rd Judges Case) 

→ It expanded the collegium

Supreme Court clarified in 1998 that the opinion of the CJI given to the president in case of appointment of judges of Supreme Court and High Court or transfer of the High Court judges does not constitute the opinion of the judiciary unless the CJI consult with -

1. 4 Senior most Supreme Court judges in case of appointment of Supreme Court judge and if none of the 4 Supreme Court judge is set to become the next CJI, then the judge of the Supreme Court who is in line to be the next CJI should also be involved in the consultation.
2. In case of transfer of judge of High Court, CJI must consult with 4 senior most judges of Supreme Court and the Chief Justice of sending and receiving High Court.
3. In case of appointment of judges of High Court, CJI consult with 2 senior most judges of the Supreme Court and the Chief Justice of respective state.

The decision in the collegium is not taken by the majority but taken through Consensus, i.e., in decision making within the collegium, no opinion contradictory to the opinion of CJI shall be conveyed to the president.

Even if 2 judges of the collegium give an adverse opinion then also CJI shall not communicate the view to the president.

Consensus 

• CJI's decision prevails over others, i.e., CJI must agree and
• 2 other judges did not oppose the decision

Views of other judges of the collegium consulted by the CJI must be in writing and the opinion expressed by the CJI is judiciary reviewable only on the ground of procedural irregularity, i.e., legislature and executive can't interfere in the appointment process.

CJI is the sole authority to start the process of appointment of Supreme Court judges whereas in case of High Court, the Chief Justice of that High Court communicate it to the CJI, then CJI starts the appointment process.

Loopholes/lacunaes in appointment process 

• No time limit is given within which the president acts on the recommendation of the collegium to appoint/transfer judges (this was used by the government to delay the process).
• There should be a proper procedure in collegium in the matter of appointment.
• RTI Act is not applicable on the recommendation/consultation/work of collegium. This makes the work of the collegium opaque.

Removal of the Judges of the Supreme Court - Under Article 124(4) 

Under Article 124(4), a judge of the Supreme Court is removed by the president upon an address of both the houses of the parliament by a majority of not less than 2/3rd of the members present & voting and a majority of total strength of the house on the ground of Misbehaviour or Incapacity.

Process of removal -

Under Article 125(5), Parliament has been empowered to provide the procedure for the introduction of the resolution asking for the removal and for investigation of charges.

Using this parliament enacted Judges inquiry Act 1968 which states that the resolution seeking the removal of the judges of the Supreme Court and the High Court can be brought in either of the houses of the parliament. 

If the resolution is introduced in Lok Sabha, it must be supported by not less than 100 members and if it is introduced in Rajya Sabha, it must be supported by a minimum of 50 members of the Rajya Sabha.

After introduction of the resolution, the presiding officer shall appoint a 3 member judicial committee to investigate the charges whose chairman is a sitting Supreme Court (or CJI), second member is a sitting High Court judge and the third member will be an eminent law expert.

Note - It is the presiding officer's discretionary power to accept the resolution seeking the removal of the judge or not to accept it.

The investigating committee submit the report to the presiding officer of the house. 

The judge concerned has the right to defend himself before the judicial committee.

After which voting of the motion is held which is approved by the Special majority. Then the motion is transmitted to the other house which if also passes the motion with the special majority, then the president shall remove the judge concerned.

The whole process of the removal of the judge is divided into 3 broad parts or actions -

1. Political Action - (it involves some sort of discretion)
• Introduction of the resolution
• Acceptance of the resolution by the presiding officer
• Passage of the resolution
2. Judicial Action - (it involves authority not discretion)
• Appointment of judicial committee by the presiding officer
• Investigation of charges by the committee
• Submission of report by the committee
3. Executive Action - (it involves order/authority)
• Removal of the judge by the President

Note - All these processes must be completed in one session.

Difference between removal of judges of Supreme Court and impeachment of the President

Removal of the Judges of the Supreme Court 

• Article - 124(4)
• Introduction of the resolution - In either of the house of the parliament
• Supported by - 100 members in Lok Sabha or 50 members in case of Rajya Sabha
• Grounds of removal - Incapacity and Misbehaviour
• Investigating house - 1st house (i.e., the house which introduced the removal resolution)
• Voting - Two-third of the members present & voting and the majority of the total membership
• Action of removal - Executive Action (by the President)

Impeachment of the President 

• Article - 61
• Introduction of the resolution - In either of the house of the parliament
• Supported by - One-forth of the member of the house
• Grounds of removal - Violation of the constitution
• Investigating house - 2nd house (constitution of a Judicial committee of 3 members)
• Voting - Two-third of the total membership
• Action of removal - Legislative Action (by the parliament)

Strength of Supreme Court - Supreme Court of India comprises of 33 other judges and 1 Chief justice of India, i.e., a total of 34 judges.

Parliament has the power to increase the number of judges in Supreme Court.

Salaries of Supreme Court judges - It is determined by the parliament and mentioned in the Schedule 2 of the constitution. It is charged on the Consolidated fund of India.

Acting CJI - When the office of the CJI is vacant or CJI is absent or unable to perform his role, then the president may appoint a judge of the Supreme Court to act as the CJI (Conventionally, it is the Senior most judge who is appointed as Acting CJI).

Ad Hoc Judge of the Supreme Court - If the quorum of the Supreme Court is not there to hold the session, then the CJI with the consent of the president can ask a sitting High Court judge who is otherwise qualified to become a supreme court judge to take part in the sitting of the Supreme Court in that case as Ad Hoc Judge of Supreme Court.

Attendance of the retired judge of the Supreme Court and High Court at the sitting of the Supreme Court can be asked by the CJI with the consent of the president but he will not be considered as a Supreme Court judge. He performs only the advisory role and does not participate in the voting process.

Regional benches of the Supreme Court - Under Article 130, Supreme Court shall sit in Delhi or in any other places as decided by the Chief Justice of India after taking approval of the president.

Law commission of India in its report pointed out that litigants have to travel long distances to have access to the Supreme Court which is even more difficult job considering the frequent adjournment.

Parliamentary standing committee on law and justice also recommended establishing regional benches of the Supreme Court for the benefit of common man.

However, Supreme Court has turned down the request multiple time. Supreme Court argumented, such an arrangement (regional benches) may affect the unitary character and integrity of the Supreme Court, since regional benches if formed may under the local pressure or influence does not perform unbiased and thus affect the decision making process as well as the supremacy of the constitution.

Though, the counter argument is that if a regional bench is found to be under the regional pressure or influence then out present legal system allows transfer of cases from one bench to another. This way independence and integrity of the court will be protected and the people will also have easy access to the Supreme Court. Thus, in the larger public interest, regional benches should be established.

Court of record - 

• Supreme Court under Article 128 & High Court under Article 215 act as the court of record.

This concept is borrowed from England. 

Under the Constitution of India, Supreme Court and High Court have been declared as a court of record. Sub-ordinate courts are not court of record.

A court ha to satisfy two conditions, if it is to be a court of record -

1. The record of the court shall be admissible as evidence or reference in all the courts of the country.
2. The court also enjoys the contempt of court jurisdiction.

Contempt of Court - Article 129 confers on the Supreme Court the power to punish individuals for its contempt. 

Similarly Article 215 confers this power on High Court.

Under these two articles Supreme Court and High Court have been declared as the court of record respectively.

Note - Constitution did not define Court of Law.

Parliament enacted Contempt of Court Act 1971 which defines contempt as civil or criminal contempt.

When the individual willfully breaches/violates an undertaking given to the court or willfully disobeys the directions or orders of the court, then it amounts to civil contempt.

Whereas criminal contempt is defined as publication of any matter or commissioning of an act that tends to scandalised the image of the court or lower the authority of the court or attempt to interfere the admission of justice in any manner.

As per the Supreme Court, this power of contempt is to protect the seed of justice not the judge and even a judge himself can be charged  for contempt of his own court.

However this contempt jurisdiction has been critisiced on the ground that -

1. It is seen as a violation of principle of natural justice.
2. Inconsistency in application of contempt jurisdiction.
3. Oversensitivity shown by the judiciary in punishing the individual for contempt and refusing to listen to the condemner properly.

Parliament thus passed the contempt of court (amendment) bill 2004 which provides that no court shall be imposed a sentence under that unless the court is satisfied that alleged behaviour substantially interfere with the course of justice and the court may allow the condemner to put forward his point of view as his defence before the court.

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Note - This is my Vision IAS Notes (Vision IAS Class Notes) and Ashutosh Pandey Sir's Public Administration Class notes. I've also added some of the information on my own. 

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