As provided in the Constitution, the Supreme Court of India consists of the Chief Justice and other Judges whose number is prescribed by the Parliament from time to time. In 1950, there was a Chief Justice and there were 7 Judges. But the number of Judges continued increasing as per the need. The Supreme Court, at present, consists of the Chief Justice and 30 Judges.
The Chief Justice and other Judges of the Supreme Court are appointed by the President of India. For appointing the Chief Justice of India, the other Judges of the Supreme or High Courts may be consulted. Usually, the senior-most Judge in the Supreme Court is appointed as the Chief Justice. For the appointment of other Judges of the Supreme Court, the Chief Justice has to be consulted. Usually, the Chief Justice himself consults a collegium of the four senior-most Judges, and all of them need to agree for any candidate to be recommended for the appointment of a judge.
A person can be appointed as a Judge of the Supreme Court only if he or she:
- is a citizen of India
- must have been at least a Judge of a High Court or of two or more such Courts in succession for at least five years
- must have been an advocate of a High Court or of two or more such Courts in succession for at least ten years
- is, in the opinion of the President, a distinguished jurist
Judges of the Supreme Court hold office till they attain the age of 65 years. But they may be removed from office by an order of the President, passed after an address by each House of Parliament supported by a special majority on the ground of proved misbehaviour or incapacity. This is known as impeachment procedure.
No Chief Justice or Judge of the Supreme Court has been impeached so far. A Judge who has served in the Supreme Court is barred from pleading in any court within the territory of India after retirement.
Jurisdiction of the Supreme Court
The Supreme Court has three types of jurisdiction - Original, Appellate and Advisory.
1. Original Jurisdiction
The Supreme Court alone has the authority to hear directly certain cases. These are:
- Disputes between the Union government and one or more State governments
- Disputes between two or more States
- Disputes between the Government of India and one or more States on the one side and one or more States on the other side
2. Appellate Jurisdiction
The power of a superior or higher court to hear and decide appeals against the judgment of the lower court is called appellate jurisdiction. The Supreme Court is a court of appeal for constitutional, civil and criminal cases. It can hear appeals against the judgments of the High Courts.
It also has the power to review its own judgment. It may in its own discretion grant special lease to appeal against any judgment or order delivered or passed by any court or tribunal within the territory of India.
Moreover, an Appeal may come to the Supreme Court in any criminal case, if the High Court certifies that the case is fit for appeal to the Supreme Court. The special appellate power has become a handy weapon in the hands of the Court to review the decisions pertaining to elections and Labour and Industrial Tribunals.
3. Advisory Jurisdiction
The Supreme Court has a special advisory jurisdiction in matters which may specifically be referred to it by the President of India. If at any time, it appears to the President that a question of law or fact has arisen or is likely to arise, which is of such public importance that it is urgent to obtain the opinion of the Supreme Court on it, he or she may refer it to the Supreme Court. The Supreme Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
The report or the opinion of the Supreme Court is not binding on the President. Similarly, there is no compulsion for the Court to give its advice.
The Supreme Court is a court of record. The records of the Supreme Court, in matters of interpretation of the law or of the constitution, have to be accepted when produced before the lower courts. There are a few more special functions of the Supreme Court of India. These are:
1. Guardian of the Constitution
As the interpreter of the Constitution, the Supreme Court has the power to protect and defend the Constitution. If the Court finds that any law or executive order is against the Constitution, the same can be declared unconstitutional or invalid.
Similarly the Supreme Court also acts as the custodian and protector of Fundamental Rights. If any citizen feels that his or her fundamental rights have been infringed, he or she may move to the Supreme Court directly for the protection of fundamental rights. The Right to Constitutional Remedies empowers the Supreme Court to act as the guardian of the Constitution.
2. Judicial Review
The Supreme Court of India has the power to examine the validity of laws or executive orders. The Supreme Court has the powers to interpret the Constitution, and through this it has assumed the power of judicial review.
Judicial Review is a process through which the judiciary examines the constitutionality of a legislative act or executive order. If on examination it is found that there has been a violation of the Constitution, the judiciary declares it to be null and void or unconstitutional.
Judicial activism has been defined as ‘innovative interpretation’ of the Constitution by the Court. This has often been criticised as the judiciary taking over the powers of the legislature. But in India it has enjoyed support from the public, because it has concentrated on giving the disadvantaged the access to justice.
It uses the instrument of Public Interest Litigation (PIL). With public interest litigation, any person can bring a petition about a problem before the court, and not just the person affected by the problem. PIL has often been used on behalf of people who are poor or disadvantaged and do not have the means to approach the court.
With judicial activism and PIL, courts have given judgments on pollution, the need for a uniform civil code, eviction of unauthorised buildings, stopping child labour in dangerous occupations, and other issues.