The Supreme Court of India is the highest judicial forum and final court of appeal under the Constitution of India, the highest constitutional court, with the power of constitutional review. Consisting of the Chief Justice of India and 30 other judges, it has extensive powers in the form of original, appellate and advisory jurisdictions.
Composition Supreme Court of India
- 1. Its sanctioned strength is Chief Justice of India (CJI) + 30 other judges. Currently there is CJI + 27 judges.
- 2. Temporary appointments: CJI after getting consent of president may appoint a retired Supreme Court (SC) judge as a temporary judge. A judge of High Court (HC) may be appointed as an ad hoc judge for a temporary period on lack of quorum of permanent judges.
- 3. Qualifications: He should be a distinguished jurist or a judge in HC for ≥ 5 years or an advocate in HC for ≥ 10 years. His retirement age is 65 years.
- 4. Impeachment: Needs special majority in each house. Grounds can be ‘proven misbehavior’ or ‘incapacity’. The motion must be moved by ≥ 100 members of House of People (Lok Sabha) or ≥ 50 members of Council State (Rajya Sabha). Then it is investigated by a committee of 3 appointed by the presiding officer of the house (1 Chief Justice of HC and 1 distinguished jurist and 1 SC judge as its head). If the committee finds the judge guilty then the motion together with committee’s report is taken up by the house. So far only Justice Ramaswamy (1993) and Soumitra Sen (2011) have seen impeachment proceedings.
Appointment of Judges in Supreme Court of India
- 1. The CJI is the sole authority to initiate the process of the appointment of judges to SC. President appoints the judge on advice of CJI. CJI’s opinion represents the collective opinion of the judiciary.
- 2. CJI forms a collegium of CJI + 4 other senior most judges of SC ( + successor to CJI if not already in the 4). The views of each member of the collegium are obtained in writing and presented to president.
- 3. Views of senior most judge of the SC hailing from the HC where the person recommended comes from (if not already a member of the collegium) also have to be obtained in the writing and presented to president.
- 4. The substance of the views of any other persons consulted by CJI should also be presented to president in writing.
- 5. CJI has got a veto power but if 2 or more judges of the collegium disagree CJI’s recommendation shall not be binding.
- 6. If the government rejects the recommendation, it must place all material and facts before the collegium. The collegium considers all the facts and if it unanimously reiterates the recommendation it has to be accepted. Such facts may be presented to the person recommended and his defence be heard.
- 7. Merit is given predominance followed by seniority and representation of HC in the SC.
Criticism of Collegium System
- 1. It lacks transparency and is arbitrary.
- 2. The judges are often busy and are not able to give full time in selecting candidates.
- 3. The collegium is an ad hoc body and functions like one.
Judicial Standards and Accountability Bill, 2010
- 1. It seeks to provide comprehensive enquiry into allegations of corruption against higher judiciary. Currently there is no such system except for a resolution passed by the SC and HC.
- 2. Declaration of assets: Makes it mandatory within 30 days of assuming office and thereafter annually. Failure to do so shall construe a misbehavior.
- 3. National judicial oversight committee (NJOC): All public complaints can be filed against it. It has a former CJI appointed by the president (who is the head) + 1 sitting judge of SC (nominated by CJI) + 1 sitting Chief Justice of HC (nominated by CJI) + Attorney General + an eminent citizen (nominated by president). CJI can nominate even if the complaint is against him!
- 4. Scrutiny panel: After preliminary investigations, the NJOC forwards the complaint to a scrutiny panel (again comprising of judges of SC if the complaint is against a SC judge or HC if the complaint is against a HC judge). It will have powers of a civil court and after investigation will submit its report to NJOC.
- 5. Investigating committee: NJOC after receiving report of scrutiny panel will submit it to investigating committee where once again the matter will be investigated. It will submit its report back to NJOC.
- 6. Finally NJOC will pass a verdict. Only if the matter is serious the NJOC will ask the judge to resign.
Original Jurisdiction of Supreme Court of India
- Art 131: Original and exclusive jurisdiction over federal disputes except – (a) Matters referred to the finance commission. (Art 280) (b) Interstate water disputes already referred to a statutory tribunal (Art 262). According to this provision only the National Water Tribunal is envisaged.
- Disputes over elections to president and Vice President.
Writ Jurisdiction (Art 32)
- Under Article 32 of the Constitution of India, it is mandatory to issue any of the 5 writs (as the case may be) if Fundamental Rights provided under part III of the constitution is violated. In violations of ordinary rights or legal rights Supreme Court cannot issue writs. (it is also original jurisdiction)
- 1. Interpretation of Constitution: In a civil case or a criminal case when a HC certifies that the case involves interpretation of the Constitution.
- 2. Civil cases: When a HC certifies that a substantial question of law is involved which should be decided by the SC.
- 3. Criminal cases: An appeal lies as of right (a) When the HC has reversed an acquittal by a lower court and sentenced to death. (b) When the HC has withdrawn for trial before itself any case from a subordinate court and sentenced to death. Additionally an appeal may lie in the SC if the HC certifies that the matter involves a substantial question of law or matter of great public importance or essential principles of justice.
- 4. Suo moto: SC can hear appeals from any court / tribunal in the land suo moto except military tribunals (Art 136). But this is an extraordinary case only.
Advisory Jurisdiction (Art 143)
- 1. SC’s advices are not binding on government but its observations made in such cases are still binding on the lower judiciary.
- 2. Disputes regarding pre-© treaties can’t come to SC as a part of its normal jurisdiction. They can be referred to by the government in its advisory jurisdiction.
Division benches vs Constitutional benches
- 1. Any case involving interpretation of Constitution shall be heard by a full Constitutional bench comprising of ≥ 5 judges.
- 2. Other cases can be decided by a division bench of 2 judges.
Supreme Court of India shall be Court of Record
- 1. Only SC and HC (and not a subordinate court) are courts of record. It means its judicial records are admissible as evidence in all courts of the country (also enjoyed by subordinate courts) and it has power to punish for contempt of itself (not enjoyed by subordinate courts). Contempt of court is meant to protect the justice but not the judges. But its use has become debatable due to inconsistencies in its applications, intolerance of judiciary against public criticism and because it is against the principles of natural justice.
- 2. Civil contempt vs criminal contempt: Civil contempt is willful disobedience of any order / direction of the court. Criminal contempt is an act which lowers the authority of the court or tends to interfere with its procedure and delivery of justice.