UNION JUDICIARY Kalyani Bapat

ARTICLE 124 : ESTABLISHMENT AND CONSTITUTION OF

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.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and
of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:

Provided further that –

 (a) a Judge may, by writing under his hand addressed to the President, resign his office;
 (b) a judge may be removed from his office in the manner provide in clause (4).
 (2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and –
 (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
 (b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
 (c) is, in the opinion of the President, a distinguished jurist.

Explanation I: In this clause “High Court” means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part
of the territory of India.

Explanation II: In computing for the purpose of this clause the period during which a a person has been an advocate, any period during which a person has held judicial office not
inferior to that of a district judge after he became an advocate shall be included.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause
(4).

(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that
behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court of before any authority within the territory of India.
ART 124 : REMOVAL OF JUDGES
(4) A Judge of the Supreme Court shall not be removed from his office except by an
order of the President passed after an address by each House of Parliament
supported by a majority of the total membership of that House and by a majority of
not less than two-thirds of the members of that House present and voting has been
presented to the President in the same session for such removal on the ground of
proved misbehaviour or incapacity.
ROLE OF THE JUDICIARY
Administration of justice: The chief function of the judiciary is to apply the law to specific cases or in settling disputes. When a dispute is brought before
the courts it ‘determines the facts’ involved through evidence presented by the contestants. The law then proceeds to decide what law is applicable to the
case and applies it. If someone is found guilty of violating the law in the course of the trial, the court will impose a penalty on the guilty person.

Creation of judge-case law: In many cases, the judges are not able to, or find it difficult to select the appropriate law for application. In such cases, the
judges decide what the appropriate law is on the basis of their wisdom and common sense. In doing so, judges have built up a great body of ‘judge-made
law’ or ‘case law.’ As per the doctrine of ‘stare decisis’, the previous decisions of judges are generally regarded as binding on later judges in similar cases.

Guardian of the Constitution: The highest court in India, the SC, acts as the guardian of the Constitution. The conflicts of jurisdiction between the central
government and the state governments or between the legislature and the executive are decided by the court. Any law or executive order which violates any
provision of the constitution is declared unconstitutional or null and void by the judiciary. This is called ‘judicial review.’ Judicial review has the merit of
guaranteeing the fundamental rights of individuals and ensuring a balance between the union and the units in a federal state.

Protector of Fundamental Rights: The judiciary ensures that people’s rights are not trampled upon by the State or any other agency. The superior courts
enforce Fundamental Rights by issuing writs.

Supervisory functions: The higher courts also perform the function of supervising the subordinate courts in India.

Advisory functions: The SC in India performs an advisory function as well. It can give its advisory opinions on constitutional questions. This is done in the
absence of disputes and when the executive so desires.

Administrative functions: Some functions of the courts are non-judicial or administrative in nature. The courts may grant certain licenses, administer the
estates (property) of deceased persons and appoint receivers. They register marriages, appoint guardians of minor children and lunatics.

Special role in a federation: In a federal system like India’s, the judiciary also performs the important task of settling disputes between the centre and
states. It also acts as an arbiter of disputes between states.

Conducting judicial enquiries: Judges normally are called to head commissions that enquire into cases of errors or omissions on the part of public servants.
INDEPENDENT INDIAN JUDICIARY
It means that the other branches of the government, namely, the executive and the legislature,
does not interfere with the judiciary’s functioning.
The judiciary’s decision is respected and not interfered with by the other organs.
It also means that judges can perform their duties without fear or favour.
Independence of the judiciary also does not mean that the judiciary functions arbitrarily and
without any accountability. It is accountable to the Constitution of the country.
HOW INDIAN JUDICIARY IS GRANTED ITS
INDEPENDENCE?
The Constitution provides for a number of provisions that ensure that the independence of the judiciary
is maintained and protected
1. Security of tenure: The judges of the SC are given security of tenure. Once appointed, they will
retain their office until the age of 65 years. They can be removed only by a presidential order on
grounds of proven misbehaviour and/or incapacity. This requires a Special Majority according to
Article 368. Read more about the types of majorities in Parliament in the linked article.
2. Salaries and allowances: The judges of the SC enjoy good salaries and allowances and these
cannot be decreased except in the case of a financial emergency. The expenses of the High Court
are charged on the Consolidated Fund of the State, which is not subject to vote in the state
legislature.
3. Powers and Jurisdiction: The SC’s powers and jurisdiction can only be added by the Parliament
and not be curtailed.
4. The conduct of any judge of the Supreme Court in the discharge of his/her duties cannot be
discussed in the legislature.
5. The SC has the power to punish any person for its contempt, as per Article 129. (Read about
Contempt of Court in India
6. Separation of the Judiciary from the Executive: A Directive Principle of State Policy says that the
state shall take steps to separate the judiciary from the executive in the public services of the state.
According to Article 50, there shall be a separate judicial service free from executive control.
UOI V. SANKALCHAND SHETH [1977] : TRANSFER
OF JUDGES CASE
Fact : In 1976, the President transferred Sankalchand H. Sheth J from the Gujarat
High Court to the High Court of Andhra Pradesh, without his consent. Justice Sheth
complied with the presidential order, and assumed his new office. Yet he challenged
the order as being based on a faulty interpretation of Article 222(1) of the
Constitution. He claimed that his consent was required and the executive did not hold
‘effective consultation’ with the Chief Justice of India.
Unfortunately for him, the Supreme Court ruled that the President had the power to
transfer judges with neither their consent nor the ‘concurrence’ of the Chief Justice of
India (CJI).
JUDICIAL CHAOS
Justice A.N. Ray. Ray J is perhaps best known for his controversial
appointment as the 14th Chief Justice of India in 1973.
In an unprecedented departure from convention, the Indira Gandhi
Government appointed him as CJI over three senior Judges merely a day
after the Court’s famed decision in Kesavananda Bharati v State of
Kerala, 1973.
Following Ray J’s retirement, Justice Beg was appointed as CJI,
superseding the senior-most Judge of the Court—Justice Khanna,
presumably in retaliation for Khanna J’s scathing dissent in ADM Jabalpur
v Shivakant Shukla, 1976.
S.P. GUPTA V. UNION OF INDIA : FIRST JUDGES CASE [AIR
1982 SC 149]
The Supreme Court after being agreed with its earlier decision was given in
Sankalchand sheth’s case held again that word ‘consultation’ meant ‘mere consultation
of views’ and it does not mean ‘ concurrence of views’ and thus the President is not
bound to act in accordance with such consultation and has a right to take a contrary
view.
This decision of the Supreme Court means that power of appointment of judges was
“solely and exclusively” vested in the central government and other constitutional
functionaries had merely a consultative role.
Hence this case laid down the ‘executive supremacy’ in matters of appointment of
Supreme Court judges.
SUBHASH SHARMA V. UNION OF INDIA [1991]
In these petitions in the nature of public interest litigation under Article 32 of the Constitution, the relief asked for is one for
mandamus to the Union of India to fill the vacancies of Judges in the Supreme Court and the several High Courts of the
country and ancillary orders or directions in regard to the relief of filling up of vacancies.

In response to the rule, the Union of India, relying upon S.P. Gupta v. Union of India, [1982] 2 SCR 365, raised a preliminary
objection as to the justiciability of the issue.
It was decided between the First Judges Case and the Second Judges Case, and where the Court recommended that the
question be decided by a bench of nine judges (and is therefore important for understanding the logic of the Second Judges
Case), it was observed:
“… the judicial institutions, by tradition, have an avowed apolitical commitment and the assurance of a non-political
complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of “consultation”
has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed,
vital. The constitutional values can not be whittled down by calling the appointments of judges as an executive act… We are
of the view that the primacy of the Chief Justice of India in the process of selection would improve the quality of selection.
The purpose of the ‘consultation’ is to safeguard the independence of the judiciary and to ensure selection of proper
persons… there are preponderant and compelling considerations why the views of the Chief Justices of the States and that of
the Chief Justice of India should be afforded a decisive import unless the executive has some material in its possession which
may indicate that the appointment is otherwise undesirable.”
This line of reasoning indicates not only that the independence of the judiciary (which is indisputably a part of the basic
structure) extends to the question of appointments, but also that the primacy of the Chief Justice is central to maintaining that
independence (in order to continue the “assurance of a non-political complexion”). In the judicial reasoning leading up to the
Second Judges Case, therefore, it is clear that the primacy of the CJI was considered by the Court to be part of the principle
of judicial independence, and not – as the Union of India contends – a temporary measure designed to deal with an
extraordinary situation.
THE SUPREME COURT ADVOCATES ON RECORD
ASSOCIATION V. UOI : SECOND JUDGES CASE
In this case, a nine-judge bench of the Supreme Court by a 7:2 majority overruled its earlier judgement
given in the judge’s Transfer case I and held that in the matter of appointment of the judges of the
Supreme Court and High Court, the Chief Justice of India should have primacy.
The appointment of Chief Justice of India shall be on the basis of seniority but the greatest
significance should be attached to the view of the Chief Justice of India formed after taking into account
the views of two senior-most judges of the Supreme Court.
It, thus, reduces to the minimum individual discretion of constitutional functionaries. So as to ensure that
neither political bias nor personal favouritism nor animosity should play any part in the appointment of
the Supreme Court judges.
It is for this reason that the word ‘consultation’ instead of ‘concurrence’ was used in the constitution
to indicate that the absolute discretion was not given to anyone neither to executive head nor
judicial head.
The majority held that no appointment of any judge to the Supreme Court can be made unless it is in
conformity with the opinion of the Chief Justice of India.
This decision thus laid down the judicial Supremacy in the matter of appointment of judges of the Supreme
Court.
THIRD JUDGES CASE : REFERENCE
Which was not a case but a ‘presidential reference’ raised by the president of India K.R. Narayana
used his consultation power under article 143.
The President had sought the Supreme Court’s clarification on the ‘collegium system’ as laid
down in judges Transfer case II, following a controversy over the recommendation by then Chief
Justice of India M.M. Punchhi.
In which, the Court held that the ‘collegium system’ requires consultation of the plurality of
judges. The sole individual opinion of the Chief Justice of India does not constitute ‘consultation’ within
the meaning of the said articles.
It was held that under Article 124(2), the Chief Justice of India should consult “a collegium of four
senior-most judges of the Supreme Court” and made it clear that if “two judges give an adverse
opinion the Chief Justice should not send the recommendation to the government”.
The opinion of the collegium must be in writing and the Chief Justice of India should send the
recommendation to the President along with his own recommendations.
The Court also held that the President can send back the recommendation of ‘collegium system’ but if
again the same name is proposed by ‘collegium’, the president is bound to accept it.
This is how the ‘collegium system’ developed gradually on the basis of Precedence established by
three separate cases of the Supreme Court of India.
The judges were appointed to the Supreme Court according to this system.
CONSTITUTION (99TH AMENDMENT) ACT, 2014
In 2014, after the Constitution 99th Amendment Act which amended Articles 124(2),
127 And 128 And Also Inserted Article 129 A,124 B And 124 C changes were done
in the procedure of appointment of judges of Supreme Court
every judge of the Supreme Court shall be appointed by the president by warrant
under his hand and seal on the recommendation of the National Judicial Appointment
Commission referred to in article 124 A.
NJAC, as provided by Article 124 (A), consisted of
 Chief Justice of India;
 two other senior judges of the Supreme Court;
 union law minister
 2 eminent people’ to be nominated by the committee consisting of The Prime Minister, CJI And The Leader Of Opposition.
SUPREME COURT ADVOCATES ON RECORD ASSOCIATION V.
UNION OF INDIA [ FOURTH JUDGES CASE]
[AIR 2015 SC 5457]
The Supreme Court struck down NJAC act as ‘unconstitutional and void’.
The Court declared that the ‘NJAC’ Act altered the basic features of the
constitution as it impairs the ‘independence of the judiciary’ and the ‘separation
of powers’ by conferring arbitrary and uncharted powers on various authorities
under the statute.
Therefore, the amendment cannot be sustained.
The position as it stood prior to the constitution 99th amendment act i.e. ‘collegium
system’ got revived.
 JURISDICTION
* Original /
Exclusive
SLP- Article
136
Appellate *
Certification
by High
Advisory
Court
Art 132 * [Art. 143]

Writ
[Art 32] *
APPELLATE JURISDICTION
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court
concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final
order of a High Court in both civil and criminal cases, involving substantial questions of law as to the
interpretation of the Constitution.
Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies :
(a) that the case involves a substantial question of law of general importance, and
(b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court.
In criminal cases, an appeal lies to the Supreme Court if the High Court
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to
imprisonment for life or for a period of not less than 10 years, or
(b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in
such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of
not less than 10 years, or
(c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer
on the Supreme Court any further powers to entertain and hear appeals from any judgement, final
order or sentence in a criminal proceeding of a High Court.
The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in India in as
much as it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution from
any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court
or Tribunal in the territory of India.
POWER TO PUNISH FOR CONTEMPT OF COURT
Under Articles 129 and 142 of the Constitution, the Supreme Court has been vested
with power to punish for contempt of Court including the power to punish for contempt
of itself.
In case of contempt other than the contempt referred to in Rule 2, Part-I of the Rules
to Regulate Proceedings for Contempt of the Supreme Court, 1975, the Court may
take action
(a) Suo motu, or
(b) on a petition made by Attorney General, or Solicitor General, or
(c) on a petition made by any person, and in the case of a criminal contempt with the
consent in writing of the Attorney General or the Solicitor General.
COURT OF RECORD
As a Court of Record, the Supreme Court has two powers:

a) The judgements, 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.
They are recognised as legal precedents and legal references.
a) It has the power to punish for contempt of court, either with simple
imprisonment for a term up to six months or with a fine or with both.
DOCTRINE OF STAIRE DECISIS
The term ‘Stare Decisis’ originates from Latin. It means ‘to abide by things decided.’ The
doctrine of Stare Decisis is used by all courts in all cases/legal issues.
A doctrine is nothing but a principle or instruction, however, it is not essentially a hard and fast
rule that can not be broken.
For instance, if the Supreme Court passes a judgement and it becomes a precedent, then as
per the doctrine of Stare Decisis, the lower courts must follow such a judgement.
The same principle has been mentioned in Article 141 of the Constitution.
Precedents are legal principles or rules that are created by the decisions given by courts. Such
decisions become an authority or an example for the judges to decide similar legal
cases/issues in the future.
The doctrine of Stare Decisis creates an obligation on courts to refer to precedents when
taking a certain decision.
INHERENT POWER / POWER TO DO POWER TO REVIEW / JUDICIAL
COMPLETE JUSTICE [Art. 142] REVIEW [Art. ____]
Inherent powers are those powers which
are not subject to being taken away
from courts and may be used by a court Power of the courts of a country to
to do complete and satisfied justice examine the actions of the legislative,
between the parties before it. executive, and administrative arms of the
government and to determine whether
Moreover, the law laid down by the
such actions are consistent with the
Supreme Court is the law of the land
constitution.
binding on all the courts and tribunals in
the country Actions judged inconsistent are
declared unconstitutional and, therefore,
 Such powers have been conferred
null and void.05-Jan-2023
upon the Supreme Court to ensure that
the court does not suffer from any
jurisdictional difficulties to do justice
between the parties before it.
in the case of Hari Singh v. the State of Haryana (1993), it was held that in a judicial system
that is administered by courts, one of the primary principles to keep note of is that the courts
under the same jurisdiction must have similar opinions regarding similar legal questions, issues and
circumstances. If opinions given on similar legal issues are inconsistent then instead of achieving
harmony in the judicial systems, it will result in judicial chaos. The decision regarding a
particular case that has been held for a long time cannot be disturbed merely because of the
possibility of the existence of another view.

in the case of ICICI Bank v. Municipal Corporation of Greater Bombay (2005), it was held that
the decision given by the Apex Court must be read following the context of the statutory
provisions which have been interpreted by the competent court. It was also stated that no
judgement can be read if it is a statute. Since the law cannot always be static, based on the
relevant principles and rules, the Judges must cautiously make use of the precedents in
deciding cases.
THANK YOU