When you read the Constitution of India, you will come to know that it is characterised as a federal Constitution. By federal Constitution we mean a written Constitution which provides the division of powers between Central and the State Governments. It is the supreme law of the land. But the language of the Constitution is very complex as its meaning is likely to be interpreted by different authorities at different times in different manners. Hence, it is natural that dispute might arise between the Centre and its constituent units (primarily the States) regarding their respective powers. Therefore, in order to maintain the supremacy of the Constitution, there has to be an independent and impartial authority which will decide disputes between the Centre and the States and States inter se (among States). This function has been entrusted upon the Supreme Court of India.
The Constitution of India has provided a single integrated and unified judicial system for the whole country. It means that for the entire country, there is one unified judicial system, one hierarchy of courts with the Supreme Court as the highest or the apex court. It is also the highest and the final interpreter of the Constitution and the general law of the land.
The Supreme Court of India consists of a Chief Justice and, 33 other Judges1). The Parliament may increase this number by law. Originally, the total number of judges was seven but in 1977, it was increased to 17 and in 1986 to 25, excluding the Chief Justice. Later in 2009, it was fixed at 31 Judges including the Chief Justice of India.
Under article 124(2), Supreme Court judges are to be appointed by the President “after consultation with such judges of the Supreme Court and of the High Courts as the President may deem necessary”. The provision in the Article says that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted. It is obligatory for the Government in which it has to consult the Chief Justice and other judges.
Significantly, the appointment is not required to be made in consultation but only ‘after consultation’, and the opinion should be in written. In actual practice, after receiving the opinion of the Chief Justice, the Cabinet deliberates on the matter and advises the President in regard to the persons to be appointed. The President acts on the advice.The Chief Justice has to consult four senior most Judges of the Supreme Court and if two of the four disagree on some name, it can not be recommended. Infact, decisions are to be taken by consensus where the Chief Justice and at least three of the four Judges agree.
In case of the Chief Justice, the senior most Judge is usually appointed. The practice has virtually been transformed into a convention and is followed by the executive without any exception. But on April 25, 1973, the convention was broken when the Government appointed Justice A. N. Roy superseding three of his senior colleagues. The government’s action has been criticised of arbitrariness and undermining the independence and impartiality of the Judiciary. To avoid such types of controversies, a bill was introduced in the LokSabha by the National Front Government for setting up a National Judicial Commission in 1990 by the then Law Minister, Dinesh Goswami, empowering the President to constitute a high level Judicial Commission for making recommendation for the appointment of the Judges to the Supreme Court (other than the Chief Justice of India), Chief Justice of High Courts and to the transfer of Judges from one High Court to another. But the Constitutional Amendment Bill lapsed consequently upon the dissolution of the Lok Sabha.
A person to be qualified for appointment as a Judge of the Supreme Court
Interestingly, a non-practising or an academic lawyer may also be appointed as Judge of the Supreme Court, if he/she is, in the opinion of the President, a distinguished Jurist. But in India so far, no non practising lawyer has been appointed as a Judge of the Supreme Court.
Every person appointed as a judge of the Supreme Court, before he/she enters upon his office, takes an oath before the President or some other person appointed by him in the form prescribed in III Scheduled of the Constitution.
Every Judge of the Supreme Court holds office until the age of 65 years. A judge may be removed from his/her office only by an order of the President passed after an address by each House of Parliament for his removal on the ground of ‘proved misbehavior or incapacity’, supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting in the same session. The procedure of the presentation of an address for investigation and proof of misbehavior or incapacity of a Judge will be determined by Parliament (Article 124 (5)).The Supreme Court has held that a Judge of the Supreme Court or High Court can be prosecuted and convicted for criminal misconduct. The expression ‘misbehavior’ in article 124 (5) includes criminal misconduct as defined in the Prevention of Corruption Act.
The Constitution prohibits a person who has held office as a judge of the Supreme Court from practising law before any Court in the territory of India (Article 124(6) and (7)). But under Article 128, the Chief Justice may appoint the retired Judges of the Supreme Court to sit and act as Ad hoc Judges in the Supreme Court.
When the office of the Chief Justice of India is vacant or when the Chief Justice is unable to perform the duties of his office due to absence, the President shall appoint an Acting Chief Justice from among the Judges of the Supreme Court to perform the duties of the Chief Justice (Article 126).
If at any time, there is no quorum of judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India is empowered to appoint Ad hoc judges in the Supreme Court from among judges of High Courts, having qualifications to be appointed Judges of the Supreme Court, for such period as he/she deems necessary. He/she can do so only with previous consent of the President and after consultation with the Chief Justice of the High Court concerned. The Judge so appointed is duty bound to give priority to the Supreme Court duties.
The Chief Justice of India may also invite a retired Judge of the Supreme Court or a retired Judge of the High Court having the qualification to be Judge of the Supreme Court, to sit and act as a Judge of the Supreme Court for such period as he deems necessary. This has to be done with the previous consent of the President and also of the person to be appointed (Article 127 and 128).
Judges of the Supreme Court are to be paid such salaries as may be determined by Parliament by law and until so determined salaries are laid down in the Second Schedule (Article 125). In addition to this, they are also allowed sumptuary allowances, rent free furnished residences, telephone, water, electricity, medical and many other facilities.
The Constitution provides that Supreme Court shall sit in Delhi. However, the Chief Justice of India may with the previous approval of President be able to sit in such other place or places as he/she may decide (Article 130). At present, the Supreme Court is functioning from Delhi.