“It can truly be said that the jurisdiction and the powers of this Court, in their nature and extent, are wider than those exercised by the highest court of any country in the Commonwealth or by the Supreme Court of the United States.”
– M.C. Setalvad, India’s first Attorney General, during the Supreme Court’s inaugural session
HISTORY OF THE ESTABLISHMENT OF SUPREME COURT
The History of the establishment of the Supreme Court began from the enactment of the Regulating Act of 1773 by the King of England. It marked a significant milestone in the establishment of the Supreme Court of Judicature at Calcutta. A Letters Patent was issued on March 26, 1774, to formally constitute the Supreme Court of Judicature at Calcutta as a Court of Record. This court was granted comprehensive powers and authority to hear and resolve criminal complaints and to adjudicate civil suits or actions involving His Majesty’s subjects.
Following this, the Supreme Courts in Madras and Bombay were established during the reign of King George III, on December 26, 1800, and December 8, 1823, respectively.
Subsequently, the Indian High Courts Act of 1861 brought about a transformative change in the judicial system. It led to the creation of High Courts in various provinces while abolishing the Supreme Courts at Calcutta, Madras, and Bombay, as well as the Sadar Adalats in the Presidency towns. These newly established High Courts became the primary judicial authorities in their respective regions.
These High Courts held the distinction of being the highest judicial authorities for all cases until the establishment of the Federal Court of India under the Government of India Act, 1935. The Federal Court was granted jurisdiction to resolve disputes between provinces and federal states and to hear appeals against judgments delivered by the High Courts.
Following India’s independence in 1947, the Constitution of India came into effect on January 26, 1950, marking a new chapter in the nation’s judicial history.
The Supreme Court of India was established, and its inaugural session was held on January 28, 1950.
As per Article 142 of the Indian Constitution , The Supreme Court’s decisions are binding on all courts within India’s jurisdiction. It enjoys the power of judicial review, judicial overreach and to punish for its contempt.
APPOINTMENT OF JUDGES OF THE SUPREME COURT OF INDIA
Article 124 of the Constitution of India provides for the establishment and composition of the Supreme Court. It states:
‘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’
Initially, the Supreme Court comprised eight judges, including the Chief Justice and seven other justices. Over the years, Parliament has progressively increased the number of judges. Currently, the Supreme Court consists of 34 judges, including the Chief Justice of India and 33 other justices.
The , procedure for the appointment of judges has changed over the years , the Judges of the higher judiciary are appointed through the collegium system, which is responsible for deciding on appointments, elevations, and transfers.
This collegium comprises the Chief Justice of India (CJI) and the four senior-most judges of the Supreme Court. Although the term “collegium” is not explicitly mentioned in the Indian Constitution, it was established through landmark judicial decisions.
Evolution of the Collegium System
First Judges Case (1981):
- The Supreme Court ruled that the “primacy” of the CJI’s recommendations on judicial appointments and transfers could be overridden for “cogent reasons.”
- This judgment gave the Executive dominance over the Judiciary in judicial appointments for the next 12 years.
Second Judges Case (1993):
- The Supreme Court introduced the collegium system, interpreting “consultation” as “concurrence.”
- It clarified that the opinion on judicial appointments must be institutional, formed in consultation with the two senior-most judges of the Supreme Court, rather than the sole discretion of the CJI.
Third Judges Case (1998):
- On a Presidential reference under Article 143, the Supreme Court expanded the collegium to include the CJI and the four senior-most judges of the Supreme Court, making it a five-member body.
Fourth Judges Case (2015):
- The 99th Constitutional Amendment Act of 2014 and the National Judicial Appointments Commission Act of 2014 had replaced the collegium system of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Appointments Commission (NJAC).
- However, in 2015, the Supreme Court declared both the 99th Constitutional Amendment as well as the NJAC Act as unconstitutional and void in the fourth judge case. Consequently, the earlier collegium system became operative again.
Article 124 (2) of the Indian Constitution , provides for the appointment of the Chief Justice of India and the other judges of the Supreme Court, the procedure for the appointment is as follows ,
Chief Justice of India
The appointment of the Chief Justice of India (CJI) is mostly based on seniority, with the senior-most judge of the Supreme Court deemed fit for the position.
At the appropriate time, the Union Minister for Law, Justice, and Company Affairs seeks the recommendation of the outgoing CJI for the appointment of their successor.
If there is any doubt regarding the suitability of the senior-most judge for the role, consultations are held with other judges as outlined in Article 124(2) of the Constitution to determine the appointment.
Upon receiving the recommendation from the outgoing CJI, the Union Minister for Law, Justice, and Company Affairs submits it to the Prime Minister, who, in turn, advises the President on the appointment of the new Chief Justice of India.
Other Judges of the Supreme Court Of India
When a vacancy is anticipated in the office of a Supreme Court Judge, the Chief Justice of India (CJI) initiates the process by forwarding a recommendation to the Union Minister for Law, Justice, and Company Affairs to fill the position.
The CJI’s recommendation for appointing a Supreme Court Judge is made in consultation with a collegium comprising the four senior-most puisne judges of the Supreme Court.
If the incoming CJI is not among these four judges, they are included in the collegium to ensure their involvement in selecting judges who will serve during their tenure as CJI.
The CJI also seeks the opinion of the senior-most judge of the Supreme Court who is originally from the High Court of the recommended candidate. If this judge lacks sufficient knowledge of the candidate’s merits or demerits, the next senior-most judge from the same High Court is consulted.
Additionally, consultation is not limited to judges whose parent High Court is the same as the candidate’s; it also includes judges who, through transfer, have served as a judge or Chief Justice in that High Court.
The opinions of the collegium members, as well as the senior-most judge from the candidate’s High Court, are documented in writing. The CJI must submit these opinions, along with their own, to the Government of India as part of the record. If views are sought from non-judicial sources, the consultation need not be written, but a memorandum summarizing the substance of these opinions should be prepared and conveyed to the government.
After receiving the CJI’s final recommendation, the Union Minister for Law, Justice, and Company Affairs submits it to the Prime Minister, who advises the President on the appointment. Upon the President signing the warrant of appointment, the Secretary announces the appointment and publishes the necessary notification in the Gazette of India.
Appointment Of Acting Chief Justices Of India
As per Article 126 of the Indian Constitution , the Acting Chief Justice of India , is appointed by the President. In case , any vacancy in the office of the Chief Justice of India must be filled, regardless of the duration of the vacancy. In such a case , the senior-most available Judge of the Supreme Court is appointed to perform the duties of the Chief Justice of India.
Once the President approves the appointment, the Secretary to the Government of India, Department of Justice, informs the Chief Justice of India or, in their absence, the concerned Supreme Court Judge. The Secretary then announces the appointment and publishes the necessary notification in the Gazette of India.
Appointment of Ad-Hoc Judges
Article 127 of the Indian Constitution, provides for the appointment of ad hoc Judges to the Supreme Court when a quorum of Judges is unavailable to hold or continue a session.
In such cases, the Chief Justice of India (CJI), with the President’s prior consent and after consulting the Chief Justice of the concerned High Court, may request a qualified High Court Judge to attend the sittings of the Supreme Court for a specified period.
The Union Minister forwards the recommendation to the Prime Minister, who advises the President regarding the appointment. Upon receiving the President’s approval, the Secretary to the Government of India in the Department of Justice informs the CJI, who formally requests the Judge to attend the Supreme Court as an ad hoc Judge. The appointment is then announced, and a notification is issued in the Gazette of India.
ELIGIBILITY FOR THE APPPOINTMENT OF THE SUPREME COURT JUDGE
As per Article 124(3) of the Indian Constitution, a person is eligible for appointment as a judge of the Supreme Court if they meet the following criteria:
- They must be a citizen of India.
- They must have served as a judge of a High Court, or two such courts in succession, for at least five years.
- Alternatively, they must have been an advocate of a High Court, or two or more such courts in succession, for at least ten years.
- They must be considered a distinguished jurist in the opinion of the President.
Although , there is no specified minimum age for the appointment of a Supreme Court judge , but a judge of the Supreme court serves until they attain the age of 65 years . However, they may choose to resign earlier by submitting their resignation to the President.
Upon retirement, a Supreme Court judge is barred from practicing law in any court in India or representing cases before any government authority. However, as per Article 128 of the Indian Constitution, a retired Supreme Court judge may be invited by the Chief Justice of India, with the President’s prior approval, to sit and serve as a judge of the Supreme Court.
CONCLUSION
The Supreme Court of India is said to be one of the most powerful courts of the country due to the significant responsibility entrusted to it by the framers of the Constitution, as well as the distinguished judges who have served on its benches.
These judges have played a crucial role in safeguarding the supremacy of the Constitution, ensuring that the people’s will, as outlined in the Constitution, prevails even over legislative authority. The Court has addressed a wide range of matters—small and large, significant and controversial—delivering landmark judgments that have not only impacted individuals’ lives but also shaped the nation’s trajectory, reinforcing the constitutional values and affirming the supremacy of the Constitution over all three branches of government.
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