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The Supreme Court

Judiciary · Part 1 / 3 · Fact-checked on · how we check

Written with AI from the sources listed at the bottom of this page, then fact-checked by a separate AI.

How the Supreme Court is composed, who can be a judge, the collegium and the NJAC case, removal of judges, the Court's original, writ, appellate and advisory jurisdictions, its powers as a court of record, and the safeguards of its independence.

India has a single, integrated judiciary. Unlike the United States, where federal and state courts form separate systems, one hierarchy of courts applies both Union and State laws: subordinate courts in the districts, a High Court for each State or group of States, and the Supreme Court at the top. The Supreme Court was inaugurated on 28 January 1950, two days after the Constitution came into force. It replaced the Federal Court set up under the Government of India Act, 1935, and appeals to the Privy Council in London ended. Its provisions are in Part V, Chapter IV, Articles 124 to 147. This part covers its composition, judges, jurisdiction and independence. Article 50, a Directive Principle, asks the State to separate the judiciary from the executive.

Article 124(1) provides for a Supreme Court of a Chief Justice of India and not more than seven other judges until Parliament by law prescribes a larger number. Parliament did so through the Supreme Court (Number of Judges) Act, 1956; since its 2019 amendment, the Act provides for 33 judges besides the Chief Justice, 34 in all. The Court sits in Delhi, but under Article 130 it may sit elsewhere as the Chief Justice decides with the President's approval. Three provisions cover shortages. When the office of Chief Justice is vacant or the Chief Justice cannot act, the President appoints another judge as acting Chief Justice (Article 126). If a quorum of permanent judges is lacking, the Chief Justice, with the President's previous consent and after consulting the High Court Chief Justice concerned, may request a qualified High Court judge to sit as an ad hoc judge (Article 127). Retired judges may also be requested to sit (Article 128).

Under Article 124(3), a judge must be a citizen of India and must have been a High Court judge for at least five years, or a High Court advocate for at least ten years, or be, in the opinion of the President, a distinguished jurist. No minimum age is fixed. A judge holds office until 65. Before taking office, a judge swears an oath in the Third Schedule form (Article 124(6)) to uphold the Constitution and the laws and to perform the duties of office without fear or favour. Under Article 125, Parliament fixes salaries by law, and a judge's privileges, allowances, leave and pension rights cannot be varied to his or her disadvantage after appointment. Under Article 124(7), a retired Supreme Court judge cannot plead or act in any court or before any authority in India. The jurist route is open even to someone who has never practised law or sat as a judge; no one has been appointed through it so far.

Article 124(2) says judges are appointed by the President after consultation with such Supreme Court and High Court judges as the President thinks necessary; for any judge other than the Chief Justice, the Chief Justice of India must always be consulted. In S.P. Gupta v. Union of India (1981), the First Judges case, consultation was held not to mean concurrence, leaving the final word with the executive. In the Second Judges case (Supreme Court Advocates-on-Record Association v. Union of India, 1993), the Court reversed this: the Chief Justice's opinion, formed with the two senior-most judges, would have primacy. In the Third Judges case (1998), a presidential reference under Article 143, the Court required the Chief Justice to consult a collegium of the four senior-most judges. The collegium is not in the text of the Constitution; it comes from judicial interpretation. By convention the senior-most judge becomes Chief Justice; the convention was set aside in 1973 and 1977.

Parliament tried to replace the collegium. The 99th Amendment Act, 2014 inserted Article 124A, creating a National Judicial Appointments Commission (NJAC). Its six members were to be the Chief Justice of India (chairperson), the two next senior-most Supreme Court judges, the Union Law Minister, and two eminent persons chosen by the Prime Minister, the Chief Justice and the Leader of the Opposition in the Lok Sabha. Under the accompanying NJAC Act, 2014, any two members could block a recommendation. On 16 October 2015, a five-judge bench in Supreme Court Advocates-on-Record Association v. Union of India, the Fourth Judges case, struck down the amendment and the Act by a 4:1 majority. It held that judicial primacy in appointments is essential to the independence of the judiciary, which is part of the basic structure of the Constitution. The collegium was restored.

Under Article 124(4), a judge can be removed only by the President's order after an address by each House, supported by a majority of its total membership and by two-thirds of the members present and voting, is presented in the same session, on the ground of proved misbehaviour or incapacity. The Judges (Inquiry) Act, 1968 sets the procedure. A notice of motion needs at least 100 Lok Sabha or 50 Rajya Sabha signatures, and the Speaker or Chairman may admit or refuse it. If admitted, a three-member committee investigates: the Chief Justice of India or a Supreme Court judge, a High Court Chief Justice, and a distinguished jurist. The House proceeds only if the committee finds the judge guilty or incapable. The difficulty is deliberate, so that no government can remove a judge for an unwelcome judgment. No Supreme Court judge has been removed; the motion against Justice V. Ramaswami failed in the Lok Sabha in 1993. The Constitution uses 'impeachment' only for the President (Article 61).

The Court's original jurisdiction under Article 131 is exclusive: only it can decide disputes between the Government of India and one or more States, or between States. The dispute must involve a legal right, so a purely political quarrel does not qualify, and a private citizen or company cannot sue under Article 131. Two kinds of dispute are excluded: those arising from a pre-Constitution treaty, agreement or similar instrument covered by the proviso, and inter-State river water disputes, which Parliament has kept from the courts under Article 262 through the Inter-State River Water Disputes Act, 1956. The Court's writ jurisdiction under Article 32 is also original, because a person whose Fundamental Right is violated can come straight to it. But it is not exclusive: High Courts can issue writs under Article 226, and for more purposes.

The Court's appellate jurisdiction makes it the highest court of appeal. In constitutional cases (Article 132), an appeal lies if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of the Constitution. In civil cases (Article 133), the certificate must say the case involves a substantial question of law of general importance that needs the Supreme Court's decision; the old money-value test was removed by the 30th Amendment (1972). In criminal cases (Article 134), no certificate is needed if the High Court, on appeal, reversed an acquittal and sentenced the accused to death, or withdrew a case from a lower court and sentenced the accused to death; otherwise a certificate is needed. Above these stands Article 136: the Court may, in its discretion, grant special leave to appeal from any judgment or order of any court or tribunal in India, except those under armed forces laws. Special leave is a discretion, not a right.

Under Article 143(1), the President may refer to the Court a question of law or fact of public importance that has arisen or is likely to arise, and the Court may, after hearing, report its opinion. This is its advisory jurisdiction. 'May' matters twice: the Court can decline to answer, and its opinion does not bind the President. Under Article 143(2), the President may refer a pre-Constitution treaty dispute of the kind excluded from Article 131, and here the Court 'shall' report. Article 145(3) requires a bench of at least five judges, a Constitution Bench, for such references and for cases involving a substantial question of interpreting the Constitution. Known references include the Kerala Education Bill (1958), on minority educational institutions, and the Berubari Union case (1960), where the Court advised that ceding territory to Pakistan needed a constitutional amendment under Article 368, not an ordinary law under Article 3.

The Supreme Court's jurisdictions at a glance
JurisdictionArticleWho comes or what is heardKey point
Original (federal)131Disputes between the Union and States, or between StatesExclusive; a legal right must be involved; not open to private parties
Writ32Any person whose Fundamental Right is violatedOriginal but shared with High Courts (Article 226)
Appellate132–134, 136Appeals from High Courts; special leave from any court or tribunalCertificate under Article 134A, or special leave; no special leave from courts or tribunals under armed forces laws (Art 136(2))
Advisory143Questions referred by the PresidentUnder 143(1) the Court may decline; the opinion does not bind the President
Court of record129Its own record and contempt of itselfRecords are conclusive evidence; power to punish for contempt

Article 129 makes the Supreme Court a court of record: its judgments are kept as a permanent record, have evidentiary value and cannot be questioned when produced in any court, and it can punish for contempt of court of itself. The Contempt of Courts Act, 1971 defines civil contempt as wilful disobedience of a court's judgment, order or process, or wilful breach of an undertaking given to a court; and criminal contempt as any publication or act that scandalises or lowers the authority of a court, interferes with judicial proceedings, or obstructs the administration of justice. Under Article 141, law declared by the Supreme Court binds all courts in India; under Article 144, all civil and judicial authorities must act in aid of the Court. Article 142 lets it pass any order needed for complete justice in a case. Article 137 allows it to review its own judgments, and after a review fails, Rupa Ashok Hurra v. Ashok Hurra (2002) created the curative petition to correct a gross miscarriage of justice.

Together these provisions keep the Court independent of the government it often rules against. Judges have security of tenure under Article 124(4). Their salaries, allowances and pensions are charged on the Consolidated Fund of India (Article 112(3)(d)), so they are not voted on each year, and their service conditions cannot be worsened after appointment. Article 121 bars discussion in Parliament of a judge's conduct in the discharge of duties, except on a removal motion. The Court's administrative expenses, including staff salaries, are also charged (Article 146(3)), and its staff are appointed by the Chief Justice (Article 146(1)), so the government can neither starve nor pack its office. The ban on post-retirement practice and the contempt power add protection. To remember this part: who sits (Articles 124–128), where and how (Articles 129, 130 and 145), what it hears (Articles 131–143), and why it can be trusted to judge the State.

Exam traps

Recap

Practice questions

Q1. Under the Constitution of India, who determines the number of judges of the Supreme Court other than the Chief Justice of India?

  1. The President, in consultation with the Chief Justice of India
  2. Parliament, by law
  3. The Constitution itself, which fixes the number permanently
  4. The collegium of the Supreme Court
Show answer

Answer: B. Parliament, by law

Article 124(1) allows Parliament by law to prescribe a larger number than the original seven; it did so through the Supreme Court (Number of Judges) Act, 1956. The President fixes the number for High Courts (Article 216), not for the Supreme Court. The Constitution set only the original figure of seven, which Parliament can change. The collegium recommends names; it does not fix the strength.

Q2. Consider the following statements:
1. A person who is, in the opinion of the President, a distinguished jurist may be appointed a judge of the Supreme Court.
2. A person who is, in the opinion of the President, a distinguished jurist may be appointed a judge of a High Court.
Which of the statements given above is/are correct?

  1. 1 only
  2. 2 only
  3. Both 1 and 2
  4. Neither 1 nor 2
Show answer

Answer: A. 1 only

Statement 1 is correct: Article 124(3)(c) includes the distinguished jurist route for the Supreme Court. Statement 2 is wrong: Article 217(2) requires ten years in a judicial office or ten years as a High Court advocate, with no jurist category. So '2 only', 'both' and 'neither' are wrong.

Q3. In which case did the Supreme Court strike down the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014?

  1. S.P. Gupta v. Union of India (1981)
  2. Supreme Court Advocates-on-Record Association v. Union of India (1993)
  3. In re Special Reference No. 1 of 1998
  4. Supreme Court Advocates-on-Record Association v. Union of India (2015)
Show answer

Answer: D. Supreme Court Advocates-on-Record Association v. Union of India (2015)

The Fourth Judges case, decided on 16 October 2015 by a 4:1 majority, struck down the NJAC. S.P. Gupta (1981) gave the executive primacy; the 1993 case created judicial primacy; the 1998 reference set the five-member collegium. None of these three could deal with a 2014 law.

Q4. With reference to the removal of a judge of the Supreme Court, consider the following statements:
1. A notice of motion for removal must be signed by at least 100 members of the Lok Sabha or at least 50 members of the Rajya Sabha.
2. The address must be supported in each House by a majority of its total membership and by not less than two-thirds of the members present and voting.
3. The President may remove a judge on the recommendation of the Chief Justice of India without any address by Parliament.
Which of the statements given above are correct?

  1. 1 and 2 only
  2. 2 and 3 only
  3. 1 and 3 only
  4. 1, 2 and 3
Show answer

Answer: A. 1 and 2 only

Statement 1 is from the Judges (Inquiry) Act, 1968, and statement 2 restates Article 124(4). Statement 3 is wrong: Article 124(4) says a judge cannot be removed except on an address by both Houses, so any option containing 3 is wrong.

Q5. Which of the following disputes can be brought before the Supreme Court under its original jurisdiction in Article 131?
1. A dispute between two States over a legal right
2. A suit by a private company against the Government of India over a contract
3. A dispute between two States over the waters of an inter-State river, where Parliament has excluded the jurisdiction of courts
Select the correct answer using the code given below.

  1. 1 only
  2. 1 and 2 only
  3. 1 and 3 only
  4. 1, 2 and 3
Show answer

Answer: A. 1 only

Article 131 covers disputes between governments involving a legal right, so 1 is covered. A private company is not a party Article 131 recognises, so 2 is out. Article 262 and the Inter-State River Water Disputes Act, 1956 bar courts from water disputes, so 3 is out. Every option except '1 only' includes 2 or 3.

Q6. Consider the following statements about a reference made by the President to the Supreme Court under Article 143(1):
1. The Supreme Court is bound to give its opinion on every question referred.
2. The opinion given by the Supreme Court is binding on the President.
Which of the statements given above is/are correct?

  1. 1 only
  2. 2 only
  3. Both 1 and 2
  4. Neither 1 nor 2
Show answer

Answer: D. Neither 1 nor 2

Both are wrong. Article 143(1) says the Court 'may' report its opinion, so it can decline; only under Article 143(2) must it report. The opinion is advisory and does not bind the President. Hence '1 only', '2 only' and 'both' are wrong.

Q7. Match the following articles with their subjects:
A. Article 129 — 1. Law declared by the Supreme Court binding on all courts
B. Article 136 — 2. Supreme Court to be a court of record
C. Article 141 — 3. Advisory opinion on reference by the President
D. Article 143 — 4. Special leave to appeal
Select the correct code.

  1. A-2, B-4, C-1, D-3
  2. A-1, B-4, C-2, D-3
  3. A-2, B-3, C-1, D-4
  4. A-4, B-2, C-3, D-1
Show answer

Answer: A. A-2, B-4, C-1, D-3

Article 129 makes the Court a court of record (A-2), Article 136 is special leave (B-4), Article 141 makes its law binding (C-1) and Article 143 is the advisory jurisdiction (D-3). The second option swaps Articles 129 and 141; the third swaps 136 and 143; the fourth matches none correctly.

Q8. Consider the following statements:
1. The salaries, allowances and pensions of Supreme Court judges are charged on the Consolidated Fund of India.
2. A retired judge of the Supreme Court may plead before any High Court in India.
3. The conduct of a Supreme Court judge in the discharge of duties may be discussed in Parliament only on a motion for the judge's removal.
Which of the statements given above are correct?

  1. 1 and 2 only
  2. 1 and 3 only
  3. 2 and 3 only
  4. 1, 2 and 3
Show answer

Answer: B. 1 and 3 only

Statement 1 follows Article 112(3)(d) and statement 3 follows Article 121. Statement 2 is wrong: Article 124(7) bars a retired Supreme Court judge from pleading in any court or before any authority in India, so options containing 2 are wrong. (A retired High Court judge, by contrast, is barred only from the court where he or she served.)

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