The Judiciary: Supreme Court and High Courts notes — Unit 3

Part V, Chapter IV (Articles 124 to 147) deals with the Union Judiciary. The Supreme Court of India is the highest judicial forum and final court of appeal under the Constitution. It is the guardian of the Constitution and the ultimate protector of Fundamental Rights.

⇒1.1 Independence of the Judiciary

The framers of the Constitution ensured judicial independence through several mechanisms:

• Security of Tenure: Judges can only be removed by a rigorous impeachment process (Art 124(4)).
• Salaries charged on Consolidated Fund: Their salaries cannot be voted upon by Parliament to pressure them.
• Power to Punish for Contempt (Art 129): The SC is a Court of Record and can punish anyone who scandalizes the court.
• Ban on Practice: Retired SC judges cannot plead or act in any court or before any authority in India.

Article 124(2) states that 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 High Courts as the President may deem necessary.

For decades, the word 'consultation' sparked the greatest constitutional war between the Government and the Judiciary.

⇒Phase 1: Executive Primacy

First Judges Case (S.P. Gupta v. Union of India, 1981):
The SC ruled that the word 'consultation' does NOT mean 'concurrence' (agreement). The President (i.e., the Central Government) must consult the Chief Justice of India (CJI), but is NOT bound by the CJI's advice. The ultimate power to appoint judges remained entirely with the Executive.

⇒Phase 2: Judicial Primacy

Second Judges Case (Supreme Court Advocates-on-Record Association v. UOI, 1993):
A 9-judge bench overruled the First Judges Case. They declared that to maintain judicial independence, the CJI's opinion must have primacy. The court created a new system called the Collegium. The President was now BOUND by the advice of a collegium consisting of the CJI and the 2 senior-most judges of the SC.

⇒Phase 3: The Collegium Expanded

Third Judges Case (In re Special Reference 1, 1998):
The President asked the SC for an advisory opinion to clarify the Collegium's working. The SC expanded the Collegium. Now, the President is bound by the recommendation of the CJI + 4 senior-most judges of the Supreme Court. If even two judges in the collegium oppose a name, the CJI cannot recommend it to the Government.

The Collegium system was heavily criticized for being opaque. Critics famously said, 'India is the only country in the world where judges appoint themselves.' To fix this, Parliament passed the 99th Constitutional Amendment (2014).

⇒The National Judicial Appointments Commission (NJAC)

The NJAC replaced the Collegium. It was a 6-member body consisting of:
1. CJI (Chairperson)
2. Two senior-most SC judges
3. The Union Law Minister
4. Two 'eminent persons' (chosen by a committee of the PM, CJI, and Leader of Opposition).

If any two members vetoed a name, the person could not be appointed.

⇒Fourth Judges Case (2015)

The Supreme Court struck down the 99th Amendment and the NJAC Act entirely, declaring them unconstitutional. The SC held that giving the Law Minister and 'eminent persons' a veto over judicial appointments completely destroyed the Independence of the Judiciary, which is part of the Basic Structure of the Constitution. The Collegium system was reinstated.

The Supreme Court has vast and varied jurisdictions.

⇒1. Original Jurisdiction (Article 131)

The SC functions as a Federal Court under Article 131. It has the exclusive power to hear disputes directly (no lower court can hear them) between:

• The Government of India vs. One or more States.
• The Government of India and any State(s) vs. One or more other States.
• Two or more States against each other.

(Note: Interstate water disputes are specifically excluded from this jurisdiction).

⇒2. Appellate Jurisdiction (Articles 132, 133, 134)

The SC hears appeals from High Courts. However, you cannot just walk into the SC. You need a Certificate of Fitness (Art 134A) from the High Court stating that the case involves a 'substantial question of law as to the interpretation of the Constitution'.

⇒3. Special Leave Petition (Article 136)

This is the most powerful weapon in the SC's arsenal. If a High Court refuses to give a Certificate for Appeal, a party can directly approach the SC asking for 'Special Leave' to appeal.

• Discretionary Power: SLP is not a right. The SC grants it entirely at its own discretion, usually only when there is a gross miscarriage of justice.
• Limitless Scope: The SC can grant SLP against any judgment, decree, or order of any court or tribunal in the territory of India (except military tribunals).

⇒4. Advisory Jurisdiction (Article 143)

The President can ask the Supreme Court for its opinion on any question of law or fact of public importance.

• Not Binding: The SC's opinion is advisory; it does not bind the President or the Government.
• Can the SC refuse? Yes. If the President asks a political question (like the Ayodhya Reference asking if a temple existed before the mosque), the SC can respectfully decline to answer.

Articles 214 to 231 deal with the High Courts in the States. High Court judges are also appointed via the Collegium system. However, the most critical power of both the SC and HC is their Writ Jurisdiction.

⇒Article 32 (Supreme Court) vs. Article 226 (High Court)

Both courts can issue the 5 prerogative writs (Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto). But their powers differ significantly:

⇒Summary of Master Concepts

• Judges Appointment: Evolved from Executive Primacy (1st Case) to the 5-judge Collegium (3rd Case).
• NJAC (4th Case): Struck down because giving the executive a veto over judicial appointments violates the basic structure of independence.
• Original Jurisdiction (Art 131): Exclusive domain for Federal disputes (State vs State).
• SLP (Art 136): Vast discretionary power to hear appeals from any tribunal in India.
• Writ Power: HC (Art 226) is wider than SC (Art 32) because HC can enforce non-fundamental rights.

⇒University Exam Tips for this Unit (Premium Advice)

• The 'Judges Cases' Timeline: A 20-mark essay on judicial appointments is extremely common. You MUST explicitly use the terms 'First Judges Case (1981)', 'Second Judges Case (1993)', 'Third Judges Case (1998)', and 'Fourth Judges Case (2015 - NJAC)'. Detailing how the word 'consultation' mutated into 'concurrence' is the key to scoring 90%+.
• Art 32 vs Art 226: This is the most frequently asked 10-marker. Draw the table provided on the previous page. Always highlight the paradox that the lower court (HC) has a wider scope of power than the apex court (SC).
• Advisory Jurisdiction Trap: Remember, the SC is not forced to answer the President. Cite the Ayodhya Reference (Ismail Faruqui case) where the SC politely returned the reference unanswered because it was a political/historical fact, not a legal question.