Supreme

court
The Supreme Court of India’s roots trace back to the Regulating Act of 1773,
which established the Supreme Court of Judicature at Calcutta. It was a
Court of Record with the authority to handle criminal and civil cases in
Bengal, Bihar, and Orissa.
King George III established the Supreme Courts at Madras (1800)
and Bombay (1823), which were replaced by High Courts in 1861 under
the India High Courts Act.
These High Courts served as the highest judicial bodies until the Federal
Court of India was created in 1935 to resolve provincial disputes and hear
appeals.
After Independence, the Supreme Court of India was established on January
28, 1950, replacing the Federal Court.
 The Supreme Court of India is the apex court of India under the
integrated judicial system established by the Constitution of
India.

It has been envisaged as:

a Federal Court
The highest court of appeal in India
The guarantor of Fundamental Rights
The guardian of the Constitution of India and
The final interpreter of the Constitution of India.
Article 130 of the Constitution allows the Supreme Court to sit in Delhi or
other locations as designated by the Chief Justice with presidential
approval
Constitutional Provisions
Articles 124 to 147 in Part V of the Indian
Constitution deal with the provisions
related to the Supreme Court of India.
The constitutional provisions mentioned
under these articles deal with the
organization, independence, jurisdiction,
powers, and procedures of the SC.
The Parliament is also authorized to
regulate these provisions
124. Establishment and constitution
of the Supreme Court.
(1) There shall be a Supreme Court of
India consisting of a Chief Justice of
India and, until Parliament by law
prescribes a larger number, of not more
than [seven] other Judges

Composition of Judges
At present, the SC consists of 34
judges (1 Chief Justice and 33
other judges).
 Supreme Court Judges Appointment
Every Supreme Court Judge is appointed by the President of India
A judge remains in office until turning 65.
The President must always consult the Chief Justice of India when
appointing a judge other than the chief justice
According to the Second Judges Case (1993), when the Chief Justice is
consulted, their advice must be agreed upon and is binding for the
President.
In the Third Judges Case (1998), it was decided that the Chief Justice
should consult a group of the four most senior Supreme Court judges
before recommending a name to the President.
This is known as the Collegium System. If the Chief Justice makes
recommendations without this consultation, those recommendations are
not mandatory for the President
 Qualifications of Judges of the Supreme Court
Article 124(3) states that a person shall not be qualified for appointment as a
Judge of the Supreme Court unless he is a citizen of India and:

They must have served as judges in a high court for at least five years or
consecutively in two or more high courts.
They must have practised as a lawyer in a High Court for at least ten
years or in two or more High Courts consecutively.
Alternatively, they can be considered a distinguished legal expert in the
opinion of the President

The Constitution has not prescribed a minimum age for appointment as a

judge of the Supreme Court.
Supreme Court Judges Oath and Affirmations

The Chief Justice of India and the judges take an oath before the
President or an appointed official. In this oath, they promise to:

To bear true faith and allegiance to the Constitution of India.

To uphold the sovereignty and integrity of India.
To duly and faithfully and to the best of his ability, knowledge, and
judgment perform the duties of the office without fear or favour,
affection or ill-will.
To uphold the Constitution and the laws
Tenure of Judges of Supreme Court
The Constitution has not fixed the tenure of a judge of the Supreme
Court. However, the Constitution contains the following three
provisions in this regard:
He/she holds office until he attains the age of 65 years.
Any question regarding his/her age is to be determined by such
authority and in such manner as provided by Parliament.
He/she can resign from his office by writing to the President.
He/she can be removed from his office by the President on the
recommendation of the Parliament.
Removal of Judges of Supreme Court
A judge of the Supreme Court can be removed from his/her office by an order of
the President.
They can be removed on the following two grounds:
proved misbehaviour
incapacity
The procedure relating to the removal of a judge of the SC is regulated by the
Judges Enquiry Act (1968).
A removal motion signed by 100 members in the case of Lok Sabha or 50
members in the case of Rajya Sabha is to be given to the Speaker/Chairman.
The Speaker/Chairman may admit the motion or refuse to admit it.
If the motion is admitted, then the Speaker/Chairman constitutes a three-member
committee to investigate the charges. The Committee consists of:
the Chief Justice of India or a Judge of the SC,
a Chief Justice of a High Court, and
a distinguished jurist.
If the committee finds the judge guilty of the charges, then both the
Houses of Parliament can take up the motion for consideration.
The motion must be passed by both Houses of Parliament with a Special
Majority (50% of the total membership of the House + two-thirds of the
members present and voting).
Once passed by both Houses of Parliament, an address is presented to
the President.
Finally, the President passes an order, removing the judge.
Acting, Adhoc and Retired Judges of the Supreme Court
Acting Chief Justice: As per Article 126, The President of India can appoint
a judge of the Supreme Court as acting Chief Justice of India when:
the office of Chief Justice of India is vacant, or
the Chief Justice of India is temporarily absent, or
the Chief Justice of India is unable to perform the duties of his office

Ad hoc Judges: As per Article 127,if there aren’t enough Supreme Court
judges to hold or continue a session, the Chief Justice of India can
temporarily appoint a High Court judge as an ad hoc judge of the Supreme
Court.
This requires the President’s approval and consultation with the Chief
Justice of the concerned High Court
Retired Judges: As per Article 128, The Chief Justice of India can
request a retired judge of the Supreme Court or a retired judge of a
High Court (who is duly qualified for appointment as a judge of the
SC) to act as a judge of the SC for a temporary period.
The Chief Justice of India can do so with the previous consent of the
President and of the person to be appointed.
Such a judge is entitled to such allowances as determined by the
President.
Also, he/she enjoys all the jurisdiction, powers, and privileges of a
judge of the SC.
But, he will not be deemed to be a judge of the SC
Jurisdiction and Powers of Supreme Court
Original Jurisdiction (Article 131)

As a federal court, the Supreme Court decides disputes between different

units of the Indian Federation, including any dispute:
Between the Center and one or more states; or
Between the Center and one or more states on one side and one or more
other states on the other side; or
Between two or more states
This jurisdiction of the SC is exclusive and original:
Exclusive: means no other court can decide such disputes.
Original: means the SC has the power to hear such disputes in the first
instance, not by way of appeal.
Appellate Jurisdiction
An appeal can be made to the Supreme Court against the judgment of the
High Court if the High Court certifies that the case involves a substantial
question of law that requires interpretation of the Constitution (Article 132)

Appeals in Civil Matters (Article 133)

An appeal lies to the Supreme Court from any judgment of a High Court if the
High Court certifies that:
the case involves a substantial question of law of general importance.
the question needs to be decided by the SC.
Appeals in Criminal Matters (Article 134)
1. if the High Court has on appeal, reversed an order of acquittal of an
accused person and sentenced him/her to imprisonment of life or for 10
years.
2. if the High Court has taken before itself any case from any subordinate
court, convicted the accused person, and sentenced him to imprisonment
for life or for 10 years.
3. if the High Court certifies that the case is fit for appeal to the SC.
The following two points are to be noted w.r.t. the above provisions:
In the first two cases, an appeal lies to the SC as a matter of right i.e.
without any certificate of the High Court.
If the High Court has reversed the order of conviction and has ordered the
acquittal of the accused, there is no right to appeal to the SC.
Appeal by Special Leave (Article 136)
The Supreme Court is authorized to grant in its discretion Special Leave to
Appeal from any judgment in any matter passed by any court or tribunal in the
country, except the military tribunal or the martial court.
This provision contains 4 aspects:
It is a discretionary power and hence cannot be claimed as a matter of
right.
It can be granted in any judgment whether final or interlocutory.
It may be related to any matter – constitutional, civil, criminal, income-
tax, labor, revenue, advocates, etc.
It can be granted against any court or tribunal (except a military court) and
not necessarily against a High Court.
Advisory Jurisdiction (Article 143)

Article 143 authorizes the President of India to seek the opinion of the
Supreme Court in the following 2 categories of matters:
On any question of law or fact of public importance that has arisen or
is likely to arise.
In this case, the SC may tender or may refuse to tender its opinion
to the President.
On any dispute arising out of any pre-Constitution treaty, agreements,
etc.
In this case, the SC must tender its opinion to the President.
In both cases, the opinion tendered by the SC is only advisory
A Court of Record (Article 129)

the judgments, proceedings, and acts of the Supreme Court are

recorded for perpetual memory and testimony. These records are
admitted to be of evidentiary value and cannot be questioned when
produced before any court.

it has the power to punish for contempt not only of itself but also of
High Courts, Subordinate Courts, and Tribunals functioning in the
entire country.
Power of Judicial Review
It refers to the power of the Supreme Court to examine the
constitutionality of legislative acts and executive orders of both the
Central and the State Governments.
If, on examination, they are found to be violative of the Constitution,
they will be declared illegal, unconstitutional, null, and void by the
Supreme Court.
Review Jurisdiction
The Supreme Court has the power to review any judgment
pronounced or order made by it.
Writ Jurisdiction
In the context of India, Writs refer to formal written orders issued by a court
empowered for the purpose, which aimed at enforcing fundamental rights
and correcting legal wrongs.
In India, the power to issue writs is conferred only to the Supreme Court
(Article 32) and the High Courts (Article 226).
The features of ‘Writs’ in India are borrowed from the Constitution of the
UK where they are known as Prerogative Writs.
Types of Writs
Habeas Corpus
Certiorari
Prohibition
Mandamus
Quo Warranto
Habeas Corpus
The literal meaning of this term is – ‘to have the body of’.
It is an order issued by the court to a person who has detained another
person to produce the body of the latter before it. The court then
examines the cause and legality of detention. It would set the detained
person free if the detention was found to be illegal.
This writ can be issued against both public authorities and private
individuals. However, it is not issued in cases where:
detention is lawful,
the proceeding is for contempt of a legislature or a court,
detention is by a competent court,
detention is outside the jurisdiction of the court.
Mandamus
The literal meaning of this term is – ‘we command’.
It is a command issued by the court to a public official, asking him to
perform his official duties that he has failed or refused to perform.
It can be issued to a public official, a public body, a corporation, an inferior
court, a tribunal, or the government for the same purpose.
This writ cannot be issued:
against a private individual or body,
to enforce departmental instruction that does not possess statutory
force,
when the duty is discretionary in nature,
to enforce a contractual obligation,
against the President of India, the State Governors, and the Chief
Justice of a High Court.
Prohibition
The literal meaning of this term is – ‘to forbid’.
It is issued by a higher court to a lower court or tribunal to prevent
the latter from exceeding its jurisdiction or usurping a jurisdiction
that it does not possess.
Thus, while the writ of ‘Mandamus’ directs activity, the writ of
‘Prohibition’ directs inactivity.
The writ of prohibition can be issued only against judicial and
quasi-judicial bodies and cannot be issued against administrative
authorities, legislative bodies, or private entities.
Certiorari
The literal meaning of this term is – ‘to be certified’ or ‘to be informed’.
It is issued by a higher court to a lower court or tribunal either to transfer
a case pending with the latter to itself or to squash the order of the latter
in a case.
This writ is issued on the grounds of excess of jurisdiction or lack of
jurisdiction or error of law.
Thus, while the writ of ‘Prohibition’ is only preventive, the writ of
‘Certiorari’ is both preventive as well as curative.
It can be issued against judicial, quasi-judicial, as well as administrative
authorities, but not available against legislative bodies, private
individuals or bodies, etc.
Quo-Warranto
The literal meaning of this term is – ‘by what authority or warrant’.
It is issued by the court to inquire into the legality of a claim of a person
to a public office.
Hence, it prevents illegal usurpation of public office by a person.
Unlike the other writs, this can be sought by any interested person and
not necessarily by the aggrieved person.
This writ can be issued only in the case of substantial public office of a
permanent character created by a statute or by the Constitution. It
cannot be issued in the case of ministerial or private offices.
Independence of Supreme Court
Mode of Appointment – The judges of the Supreme Court are appointed
by the President in consultation with the members of the judiciary itself
Security of Tenure
Fixed Service Conditions
Expenses Charged on Consolidated Fund – non-votable by the
Parliament.
Bar on Parliamentary Interference
Ban on Post-Retirement Practice