Supreme Court: Appointments, transfers, powers, functions and jurisdiction

Supreme Court: Appointments, transfers, powers, functions and jurisdiction

Supreme Court is the highest court of India in civil and criminal matters. It is constituted to maintain the supremacy of the constitution and also to decide the disputes between the centre and the states or the States inter se. The Supreme Court is known as the guardian of the Fundamental Rights of the people. It is the great tribunal which has to draw the line between individual liberty and social control. 1

Article 124 of the Indian Constitution deals with the establishment of the Supreme Court. There shall be a Supreme Court of India having the Chief Justice of India and seven other judges and no judges cannot be exceeded until by law Parliament prescribes. In 1986 number of judges has been increased to 26 including the Chief Justice. 2 In 2009, the number has been increased to 31 including Chief Justice. 3

Appointment and transfer of Judges

Article 124 (2) defines that: the President in appointing other judges of the Supreme court was bound to consult the Chief Justice of India but in appointing the Chief Justice Supreme Court the President was not bound to consult anyone. In Sankalchand Sheth’s case, 4 the meaning of the word ‘consultation’ is ‘effective and full consultation’ and was related to the scope of Article 222 of the constitution.

Due to lack of transparency and delay in the appointment of judges, the collegium system was replaced by the National Judiciary Appointments Commission (NJAC) for the appointment of judges under Article 124-A in 2014. NJAC consists of the Chief Justice Supreme Court as a Chairperson with two senior-most Supreme Court judges accompanied by the Union Minister of Law and Justice and two persons nominated by a committee consisting C.J.I., Prime Minister and Leader of Opposition.

The functions of NJAC are- recommending persons for C.J.I., judges of S.C., Chief Justice of High Court, judges of High Court. (2) Transfer of Chief Justices and judges from one court to another. (3) Ensuring the recommended persons are of integrity and ability.

But in Supreme Court Advocate on Record Association v. Union of India, 5 The Supreme Court declared the Constitutional 99th Amendment Act, 2014 and National Judicial Appointment Commission Act, 2014 as unconstitutional and void. The appointment of Judges of Supreme Court and High Courts and also the transfer of Chief Justice from one High Court to another will be through the collegium system. The Court also held that it was not within the sphere of Parliament to decide the process of appointment of Judges to the Supreme Court.

Justice Madan B. Lokur held that “Article 124-A impinges the independence of judiciary and in the matter of appointment of judges (which is an integral and foundational part of the independence of judiciary) alters the basic structure of the Constitution. The NJAC Act confers arbitrary and unchartered powers and it violates Article 14 of the Constitution.

Similarly, in Supreme Court Advocate on Record Association v. Union of India, 6 in 2015 Court struck down 99th Amendment Act for the appointment of Judges by the National Judicial Appointment Commission. The Government of India can finalize the Procedure by supplementing it in consultation with the CJI. The CJI will make a decision based on the view of collegium of four senior-most judges of the Supreme Court. The Secretariat can also be established for each High courts and Supreme Court for the better management system of appointment of Judges.

Qualification of Judges

The qualification to be a judge a Supreme Court is given under Article 124 (3). The qualifications are – one must be a citizen of India, (1) has been a judge of High Court at least for five years, (2) has been for at least ten years an advocate of a High Court, (3) is in the opinion of the President [Article 124(3)]. A non-practising or an academic lawyer may also be appointed as Judge of Supreme Court if he is, in the opinion of the President. In America non-practising lawyers had been appointed as Judges of the American Supreme Court. 7

Recent development

The seniority-rule followed in appointing the Chief Justice of India was digressed in appointing Judge Ray as the Chief Justice, ignoring the 3 senior judges of the Supreme Court (1973). The consequence of this all three judges Hegde, Grover & Shelat resigned. There was a nation-wide resentment to the behaviour of the central government in appointing the Chief Justice.

There are the Right to get the Information through proper procedure it is empowered by Right to Information Act, 2005. This Act aims to increase the transparency and accountability in governance and also aimed at to empower common man to know about various administrative processes. There were few departments left away from the reach of RTI as it would comprise security, secrecy which is must legally and constitutionally.

In 2010 the full Judges Bench of Delhi High Court has held that RTI Act covers the office of CJI. It has also been held that the right to information is a Fundamental Right. 8

The higher judiciary does not fall in the ambit of RTI but the office of the Chief Justice of India falls under the ambit of the RTI after the Supreme Court’s decision in 2019. But Supreme Court cautions that RTI cannot be used as a tool for surveillance. In the very known case of Cpio, Supreme Court of India v. Subhash Chandra Agarwal & Anr. W.P. (C) 288/2009, the court ordered the CPIO to release information about assets declarations made by the judges of the Supreme Court but not their content.

In the case of Girish Ranchandra Deshpande v. Central Information Commissioner case, 9 the SC in 2012 held that the information on records of public servants cannot be revealed unless a large public interest is demonstrated.

Powers of the Supreme Court

There are various powers of the Supreme Court. The Supreme Court has the power to punish for the contempt (civil or criminal) of court and also has the power of judicial review. Under Article 127 & 128 the S.C. can appoint retired judges of Supreme Court or High Court and the ad hoc judges. Supreme Court can review any of his order or judgement for removing mistakes. Supreme Court is a Court of Record and its decisions cannot be questioned in any of the courts.

Supreme Court has the power and jurisdiction to deal with the matters like Ayodhya Land Dispute, in this landmark case, the SC in 2019 has held that the disputed land will be given for the making of Ram Mandir. This dispute has been from more than 50 years in the courts.

Recently SC has given the judgement in Pawan Kumar Gupta v. State of NCT of Delhi case. Pawan Gupta is the accused of rape, murder and sexual assault in the Nirbhaya Rape case.

Jurisdiction of the Supreme Court

The jurisdiction of the Supreme Court is broadly categorized into three parts:

Original Jurisdiction (Article 131)

The Supreme Court has original jurisdiction in the cases if the dispute is between the two or more states, between the government of India and State and government and some state at one side and some states on the other.

The Supreme Court in its original jurisdiction cannot entertain any suits brought by private individuals against the government of India and in the political matters. Under Article 32 one can move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights.

In State of West Bengal v. Union of India case, 10 under the Coal Bearing Areas Act, the union had the power to acquire the coal-bearing land which includes Lands belonging to the States in India. The Supreme Court held that the Act was valid and the suit could be entertained under this article.

Appellate Jurisdiction (Article 132)

In India Supreme Court is the highest court of appeal. The appellate jurisdiction is divided into four main categories:

Appeal in Constitutional Matters [Article 132(1)]

An appeal shall lie to the Supreme Court from any judgement, decree or final order of a High Court whether in civil, criminal or other proceedings. The case must involve the substantial question of law as to the interpretation of the Constitution. A question is not a substantial question of law which has been decided by the Supreme Court in the previous case. After the final decision in the High Court, the appeal can lie in the Supreme Court against the decision of the High Court.

Appeal in Civil Cases (Article 133)

Article 133 provides that an appeal shall lie to the Supreme Court from any judgement, decree or final order in a civil proceeding of a High Court only if –the case involves a substantive question of law of general importance and in the opinion of the High Court the question needed to be decided by the Supreme Court.

Before the 30th Amendment, there was right to appeal directly to the Supreme Court when the value of subject-matter is 20000 or above. But now, if the High Court will allow and provide certificate then only appeal is allowed in Supreme Court.

In appeal under Article 133, the appellant cannot be allowed to raise new grounds not raised before the lower court. 11

Appeal in Criminal cases (Article 134)

According to this Article an appeal lies to the Supreme Court from any judgement, final order or sentence in a criminal proceeding of a High Court- Without a certificate of High Court under Article 134 (a), (b) and with a certificate of the High Court under Article 134(c). But if the High Court has reversed the order of conviction and has ordered the acquittal of an accused person then no appeal would lie to the Supreme Court.

Appeal by Special Leave

Article 136- Under this article, the Supreme Court is authorized to grant special leave to appeal in its discretion. The exception in the power of the Supreme Court is with regard to any judgement, etc. of any court or tribunal relating to the Armed Forces. Article 132 to 135 deals with the ordinary appeals to the Supreme Court in cases where the needs of justice demand interference by the highest court of the land.

In Pritam Singh’s case, the Supreme Court laid down the guidelines that the SLP would be given only in exceptional circumstances and when grave injustice is done.

Advisory Jurisdiction (Article 143)

Article 143 provides that if at any time it appears to the President that a question of law or fact has arisen or likely to arise, and the question is of public importance that it is advisable to obtain the opinion of the Supreme Court upon it.

Under clause (2) if the President refers to the Supreme Court matters which are excluded from its original jurisdiction under the provision to Article 131, the court shall be bound to give its opinion to the President.

Under clause (1) Supreme Court has given Advisory opinion in various cases:

  • re U.P. Education Bill;
  • re U.P. Tangle case;
  • re Special Courts;
  • re Presidential Election etc.

Conclusion: 

The Supreme Court of India has established a reputation for itself and is well known in the jurisprudential world map of law and justice. The Supreme Court works as a guardian for the violation of the fundamental rights of the citizens and grants the writs under Article 32 of the Constitution.

Supreme Court has never been indifferent or unhelpful to the minorities and their rights but has always safeguarded the rights of the minorities. There is no biasness in the Supreme Court on any of the grounds. Law is equal for every citizen and the process is the same for everyone for moving to the Supreme Court.

When a mass has been affected than a public person can approach the Supreme Court under Article 136 i.e. Special Leave Petition but for the benefit in mass not for the personal benefit.

Exercise of wide discretionary power varies from one judge to another or from one case to another without any uniform pattern. The independence of the judiciary is the sufficient proof of the success of democracy in India.

The Supreme Court must come in the ambit of the RTI but with some restrictions like confidential information will not come under RTI etc. To make the accountability and transparency in the appointment of judges, the pendency of cases etc. the Supreme must come under RTI.

“The views of the authors are personal

References

  • Sri Alladi Krishnaswamy Aiyer, Member of Drafting committee
  • The Supreme Court (Number of Judges) Amendment Act, 1986
  • The Supreme Court (Number of Judges) Amendment Act, 2009
  • Union of India v. Shakalchand Sheth, AIR 1977 SC 2328
  • (2015) AIR SCW 5457
  • AIR 2016 SC 117
  • Law Commission of India, Report on Reform of Judicial Administration, Vol. 1. pp. 36-37—CAD Vol. III, p. 254, view of Anantasavanam Ayyengar who had supported the provision.
  • 8.                  Secretary General, Supreme Court of India v. Subhash Chandra, AIR 2010 Del. 159
  • Girish Ranchandra Deshpande v. Central Information Commissioner on 3 October, 2012
  • State of West Bengal v. Union of India, AIR 1963
  • Mangal Ram v. State of Orissa, AIR 1977 SC 1456; Lila Ram v. Union of India, AIR 1975 SC 2112
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I am Ayush Pandey pursuing BBA. – LL.B., ( Integrated) at BBD Deemed to be University. Being an athirst law student I love to read the different cases and having keen interest towards Indian Penal Code & Constitutional Law. I love to read books that inspire me and also which re related to the legal field. I prefer to travel and explore new things and places. In my free time, I use to listen to music and spend my quality time with the different – different people so that I can get their perspective bout the happenings in our country. It helps me in making my points stronger at the time of frequent debates with my colleagues. It also helps me in nourishing my writing skills. In my articles, I usually try to frame more reality than fiction and trying to show the impacts either positive or negative on society as I have done similar in my Article on ‘Dowry Death'. last but not the least, I am a gadget lover and I own many of them.