Appointment of the Judges

The procedure of appointment of the Chief Justice and other judges has created a lot of controversy because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed by the president after consulting with the judges of the supreme court and the high courts. Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the executive from having complete discretionary powers in the appointment of the judges.

Until 1973, the senior most judge of the supreme court was appointed as the Chief Justice. However, this convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word “consult” does not mean that the president is bound by the advise. He is free to make his own decision.

In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer of a Judge from one high court to another under Article 222, SC held that the President has the right to differ from the advice provided by the consultants.

The 11th Presidential Reverence sought clarification on certain doubts over the consultation process to be adopted by the Chief Justice of India as stipulated in the 1993 case relating to judges appointment and transfer opinion.

The following propositions were laid down:

1. CJI should consult a collegium of four senior most Judges of the Apex Court
2. The Collegium should make the decision in consensus and unless the opinion of the collegium is in conformity with that of the CJI, no recommendation is to be made
3. In the transfer of HC Judges, in addition to the collegium of four senior most Judges, the CJI was obliged to consult the CJ of two High Courts.
4. In regard to the appointment of HC Judges, the CJI was required to consult only two senior most Judges of the Apex Court

Case Law: 

This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR 1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of high courts and supreme court, the CJ should have the primacy and the appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior most judges and the recommendation must be made only if there is a consensus among them.

As of now, due to the decision in this case, the appointment of the judges in SC and High Courts are fairly free from executive control. This is an important factor that ensure the independence of the judiciary.

Jurisdiction of the Supreme Court

The jurisdiction of the SC can be increased but not decreased i.e. their power cannot be curtailed.

Art 129 Court of Record

SC is a court of record and has all the powers including power to punish for civil or criminal contempt of court. In the case of Delhi Judicial Service Asso. vs State of Gujarat 1991, SC held that It can even punish for contempt of any subordinate court in India as well.

In the aftermath of babri masjid demolition, UP CM Kalyan Singh was punished for contempt of court for failing to deliver on his promise not to allow any construction in disputed area.

Art 131 Original Jurisdiction

The SC has original jurisdiction in any dispute arising between:

• Center and one or more states.
• Center and one or more states on one side and one or more states on another.
• two or more states.

Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must involves a question of law or fact on which a legal right depends. Further, the suit cannot be because of any commercial relation or political relation between the two parties.

In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by State of Karnataka against the Govt. regarding its objection to the appointment of an inquiry commission is maintainable.

Art 132 Appellate Jurisdiction  – Constitutional

The SC is the highest court of appeal in the country. The writs and the decrees of the SC run throughout the country. A person can appeal to the SC under its appellate jurisdiction if he is not satisfied with the decision of the lower courts.

Art 132(1) allows an appeal to be filed in the SC if three conditions are satisfied:

1. The order appealed must be against the judgement of a high court in civil, criminal, or other proceedings.
2. The case involves a question of law as to the interpretation of the constitution.
3. The High Court, under 134A certifies that the case be heard by the SC.

Krishnaswamy vs Governer General in Council 1947 – If there is a difference of opinion among High Courts and if there is no direct decision by SC on that point, it is a substantial question of law that can permit appeal in SC.

Art 143 Advisory Jurisdiction

Art 143 provides that if at any time it appears to the president that a question of law or fact has arisen or is likely to arise and that the question is of such public importance that expedient opinion of the SC is required, then he may refer it to the SC. The SC, after such hearing as it may deem fit, will report back to the president. Under 143(2), the SC is can be asked to give opinion even on matters not permitted under art 131.

There is no similar provision in the American constitution. In US, the court can give ruling only on concrete cases.

In re Kerala Education Bill 1953, SC has interpreted the word “may” in clause 1 as it is not bound to give its opinion. If it has a good reason, it may refuse to express its opinion.

In re Special Courts Bill 1979 case, SC has held that opinions given by it under this jurisdiction are binding on all courts in the country.

In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused to express its opinion on whether a temple existed on the disputed location because it was superfluous, unnecessary, and favors a particular religion.

Public Interest Litigation (PIL)

The Supreme Court has developed new methods of dispens­ing justice to the masses through the public interest litigation. Former Chief Justice PN. Bhagwat, under whose leadership public interest litigation attained a new dimension comments that “the supreme court has developed several new commitments. It has carried forward participative justice. It has laid just standards of procedure. It has made justice more accessible to citizens”.

Judicial Activism

The term ‘judicial activism’ is intended to refer to, and cover, the action of the court in excess of, and beyond the power of judicial review. From one angle it is said to be an act in excess of, or without, jurisdiction. The Constitution does not confer any authority or jurisdiction for ‘activism’ as such on the Court.

• interference of the judiciary in the legislative and executive fields
• occurs due to the non-activity of the other organs of the government
• relief is provided to the disadvantaged and aggrieved citizens
• a base for policy making in competition with the legislature and executive

In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government regarding policies and also matters of administration.

Judicial Restraint

In adjudging the constitutionality of socio-economic legislation, judges accord deference to the legislative will and such legislation is not invalidated unless it is patently discriminatory. Judges do not interfere with the policy of the executive government if it is not contrary to a statute or the Constitution.