Supreme Court
Introduction: Indian judiciary is an integrated judiciary consisting of the Supreme Court of India at the apex of the entire judicial system below which there are the High Courts in each State or group of States. Below the High Courts lies a hierarchy of Subordinate Courts. Panchayat Courts also function in some States under various names like Nyaya Panchayat, Panchayat Adalat, Gram Kachheri, etc. to decide civil and criminal disputes of petty and local nature.
Brief History of Supreme Court:
| Regulating Act of 1773 | Promulgated by the King of England paved the way for establishment of the Supreme Court of Judicature at Calcutta. |
| Letters of Patent issued on 26 March 1774 | It established the Supreme Court of Judicature at Calcutta, as a Court of Record, with full power & authority to hear and determine all complaints |
| Supreme Courts at Madras and Bombay | The Supreme Courts at Madras and Bombay was established by King George – III on 26 December 1800 and on 8 December 1823 respectively. |
| India High Courts Act 1861 | It was enacted to create High Courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency towns. |
| Government of India Act 1935 | Federal Court of India was established under this. The Federal Court had jurisdiction to solve disputes between provinces and federal states and hear appeal against Judgements from High Courts. |
| Post-Independence | The Constitution of India came into being on 26 January 1950. The Supreme Court of India also came into existence and its first sitting was held on 28 January 1950. |
Composition and Appointment
Composition –
- Currently, the Supreme Court is composed of thirty-four judges (one chief justice and thirty-three other judges).
- The power to decide the judges in the Supreme court is vested in the Parliament. The Centre notified an increase in the number of Supreme Court judges from 31 to 34 after enactment of the Supreme Court (Number of Judges) Amendment Act, 2019.
- Initially, the strength of the Supreme Court judges was fixed at eight (one chief justice and seven other judges). This number of additional judges was gradually expanded by the Parliament, rising from ten in 1956 to thirteen in 1960, seventeen in 1977, twenty-five in 1986, thirty in 2008, and thirty-three in 2019.
Appointment of Judges
- The President appoints the Supreme Court judges (Article 124).
- The President appoints the chief justice after consultation with such judges of the high courts and the Supreme Court as he considers necessary for the purpose.
- The President appoints the other judges after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he considers necessary for the purpose.
- As per the Constitution, in appointment of judges other than CJI, the President would always consult CJI.
Dispute over Consultation
Article 124 states, “Appointment of the Judges of the Judges shall be made after consultation with such Judges of the Supreme Court and of the High Courts in the States, as the President may deem necessary. …” Therefore, the whole controversy started over the interpretation of the word consultation.
First Judges Case – S.P. Gupta vs. Union of India (1982):
- The Supreme Court held that the ‘consultation’ under Article 124 means ‘mere consultation of views’ and not ‘concurrence of views’. The ultimate power to appoint judges is vested in the Executive.
- Therefore, the power of appointment of judges is ‘solely and exclusively’ vested in the Central Government.
1. Second Judges Case – Supreme Court Advocates on Record Association vs. Union of India (1993)
In this case a 9-judge bench decided the dispute by a majority of 7:2 and held that:
- In matter of appointment of Judges of Supreme Court and High Court, Chief Justice of India should have primacy.
- Greatest significance should be attached to view of CJI formed after taking into account the views of 2 senior most Judges of Supreme Court. Therefore, ‘consultation’ means ‘concurrence of views’. Also, the President is bound by the views of the Collegium.
- Selection should be made as a participatory consultative process in which the executive should have power to act as a mere check on exercise of power by CJI.
- Executive element in appointment process has been reduced to minimum and political influence is eliminated.
- Appointment of CJI should be made on the basis of seniority.
2. Third Judges Case – In Presidential Reference (1999)
9 judge bench of Supreme Court unanimously held:
- Consultation process by CJI requires consultation of Plurality of Judges.
- Sole individual opinion of CJI does not constitute ‘consultation’.
- CJI should consult a collegium of 4 seniormost judges of Supreme Court. If 2 judges give adverse opinion the Chief Justice should not send recommendation.
- Opinion of collegium must be in writing.
- In regard to appointment of judges to High Court, collegium should consist of CJI and any 2 seniormost judges of Supreme Court.
- The court held that the chief justice of India’s recommendation made without complying with the rules and requirements of the consultation process will not be binding on the government.
99th Constitutional Amendment Act, 2014
- It amended Article 124 and the process of appointment of High Court and Supreme Court judges.
- Amended Article 124(2) states every judge of Supreme Court shall be appointed by President on recommendation of National Judicial Appointment Commission (NJAC).
- Accordingly, no consultation is required with the judges of Supreme Court and High Court as per the precedence set under Collegium system.
- National Judicial Appointment Commission (NJAC) shall consist of:
- Chief Justice of India
- 2 Senior judges of Supreme Court
- Union Minister in charge of Law and Justice
- 2 eminent persons nominated by Committee consisting of Prime Minister, Chief Justice of India and Leader of Opposition
Functions of National Judicial Appointment Commission (NJAC):
- Recommendation for appointment of Chief Justice of India, Judge of Supreme Court, High Court and Chief Justice of High Court
- Recommendation for transfer of Chief Justice and other judges of High Court
