The first reference to a Supreme Court for India appears in the Nehru Report 1928.

Suggested
changes in the colonial judiciary, in particular to establish SC with original jurisdiction.

At that time, Judicial system consisted of inferior courts and High Courts, of which the High Courts in
Calcutta, Madras and Bombay were the most important. Appeal from the three courts went to
‘Judicial Committee of the Privy Council in England’.

The Advisory Committee’s Report on Fundamental Rights – demanded powerful Supreme Court with
absolute to secure FRs effectively.

Constituted an Ad hoc Committee of 5 members (B N Rau, Munshi, Ayyar, B L Mitter and S

Ad hoc committed in its report bestowed the power of judicial review to the SC.

Before the CA

The judicial provisions of the Draft Constitution were debated for the several times in 1948.

Major issues related with the enlargement of Supreme Courts power to Criminal case, and nature of
judicial review

Securing Independence

After securing the powers of judiciary, the next question was how to retain the independence of the
judiciary? How to keep judiciary out of politics?

Major considerations for judicial independence in CA focused on – salary, removal, and tenure

Draft Constitution – Salaries fixed by the President in consultation with CJI.

CJI Kania wrote letter to the Nehru about the relationship between Executive and Judiciary. On
appointment he recommended no intervention of the provincial Home Ministry.

Eligibility Criteria for Supreme Court Judge

The Indian Constitution says in Article 124 [3] that in order to be appointed as a judge in the
Supreme Court of India, the person has to fit in the following criteria:

 He/She is a citizen of India and

 has been for at least five years a Judge of a High Court or of two or more such Courts in
succession; or

 has been for at least ten years an advocate of a High Court or of two or more such Courts in
succession; or

 is, in the opinion of the President, a distinguished jurist.

Supreme Court of India : Independence of Judiciary

Independence of Judiciary under the Constitution

 Appointment – President in consultation with CJI (Article 124(2) and 217 (1) 

 Transfer – High Court judges President to consult CJI [Article 222(1)]

 Security of tenure – impeachment proved misbehaviour or incapacity [Article 124 and 218]
  Conditions of Service – privileges, rights and allowances cannot be altered [Article 125 and
221]

 Administrative Powers – administration and recruitment of staff article 146 and 229.  High
Court administers subordinate courts Article 235. 

 Power to punish for its contempt – article 129 and 215

 Separation of Judiciary from executive – article 50

 Prohibition on practice after retirement – Article 124(7)

 Security of tenure

 Secured salaries

 Judicial privilege

 Contempt powers

 Separation of powers

 Appointment and removal

Appointment article 124

 Establishment and constitution of Supreme Court.—(1) There shall be a Supreme Court of

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal 3[on the recommendation of the National Judicial Appointments Commission
referred to in article 124A] and shall hold office until he attains the age of sixty-five years: 

[Provided that]— 

 (a) a Judge may, by writing under his hand addressed to the President, resign his office; 

 (b) a Judge may be removed from his office in the manner provided in clause (4). 

(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such
manner as Parliament may by law provide. 

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a
citizen of India and— 

 (a) has been for at least five years a Judge of a High Court or of two or more such Courts in
succession; or 

 (b) has been for at least ten years an advocate of a High Court or of two or more such Courts in
succession; or 

(c) is, in the opinion of the President, a distinguished jurist.

 (4) A Judge of the Supreme Court shall not be removed from his office except by an order of
the President passed after an address by each House of Parliament supported by a majority
 of the total membership of that House and by a majority of not less than two-thirds of the
members of that House present and voting has been presented to the President in the same
session for such removal on the ground of proved misbehaviour or incapacity. 

 (5) Parliament may by law regulate the procedure for the presentation of an address and for
the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). 

 (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon
his office, make and subscribe before the President, or some person appointed in that behalf
by him, an oath or affirmation according to the form set out for the purpose in the Third
Schedule. 

(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court
or before any authority within the territory of India.

Appointment of judges and Independence of Judiciary

1950 CJI seniority rule followed became a convention until 1973. In 1973, the executive bypassed
the senior judges and appointed Justice A N Ray as CJI. In 1955 M C Setalvad Chairman Law
Commission of India objected to the seniority rule, other consideration recommended. Experience,
Administrative competence and the merit should be the criteria. Overall the issue revolved around
‘consult’ in article 124. 

S P Gupta vs. Union of India (AIR 1982 SC 149) : Judges Transfer Case I  : Established executive
supremacy in appointment of SC Judges. It concurred with the interpretation of ‘consultation’ in
Sankalchand Sheth case (AIR 1977) wherein ‘consultation’ meant ‘full and effective consultation
through three constitutional functionaries must have for its consideration full and identical facts on
the basis of which they would be able to take a decision. The President however has a right to differ
from them and take a contrary view. Consultation does not mean concurrence and the President is
not bound by it.’ President’s final authority meant council of ministers.   

 Supreme Court Advocates on record vs. Union of India (1993) : Judges Transfer Case II : 9
judges bench by 7 :2 overruled the S P Gupta case. CJI on seniority basis. CJI and 2 senior most
judges opinion should have primacy.  Executive influence reduced. Majority justified seniority
rule for CJI. No political bias, personal favoritism and any animosity. 

 Court held that, “Thus, the executive element in the appointment process has been reduced to
minimum and political influence is eliminated. It  is for this reason that the word ‘consultation’
instead of ‘concurrence’ was used in the Constitution but that was done merely to indicate that
absolute discretion was not given to any one, not even to the Chief Justice of India as an
individual, much less to the executive.”

In re presidential reference (AIR 1999 SC 1) : Appointment and Transfer of Judges Case III : President
under article 143 referred questions seeking clarification on the consultation process as laid down in
second judges case following a controversy over the recommendation by former CJI M M Punchhi. 9
judges bench uphold and widened the scope of CJI’s consultation process. For the appointment of
judges in the Supreme Court the CJI should consult a Collegium of four senior most  CJI and 4 senior
most judges of the SC.  Collegium recommendation should be based on consensus. For appointing
HC judges collegium includes CJI and 2 senior most judges of SC. Appointment of judges challenged
only on the ground that 1993 and 1999 decisions guidelines are not followed.

National Judicial Appointment Commission

 The Constitution (Ninety-ninth Amendment) Act, 2014 amended article 124(2), 127 and 128.
Inserted articles 124A, 124B and 124 C. As per this amendment judges were appointed on
the recommendation of National Judicial Appointment Commission (NJAC) referred in article
124A. It ended the consultation between the judges and the President. 

 Composition : Chief Justice of India, Chairperson, ex officio; 2 other senior judges of the
Supreme Curt next to the Chief Justice of India, ex officio; the Union Minister in charge of
Law and Justice member ex officio; 2 eminent persons to be nominated by the Committee
consisting of the PM, CJI and Leader of Opposition.

 Functions : Recommend persons for appointment as CJI, SC judges, CJI HC and Judges of HC;
Transfer of judges. 

Supreme Court Advocate on record Association vs. Union of India (2015 AIR SCW 5457) : Fourth
Judges case : Declared 99th Constitution Amendment Act and the NJAC 2014 Act as unconstitutional
and void. Collegium system continued. 4: 1.

Section 5(1) of the NJAC Act applied ‘fit’ test to hold the position. Parliament ‘fit’ test uncertain and
ambiguous. ‘Fit’ can be tailor-made to choose a candidate for below in the seniority list.

Section 5(2) breached regional representation. ‘The consideration of judges on the basis of their
seniority, by treating the same, as primary consideration, would adversely affect the present
convention of ensuring representation from as many state HC as is possible’.

Section 6(6) veto power to the two members of NJAC maintain executive supremacy is violation of
independence of judiciary and separation of powers.

Court held that the existing collegium system should be improved. Memorandum of Procedure on
Eligibility criteria, transperancy, complaints, secretariat.

Removal of Judge

1. Judges (Inquiry) Act, 1968 provides procedure for investigation into misbehaviour or
incapacity of a judge.
2. It begins with motion of removal accepted by the Speaker of the Lok Sabha or the Chairman
f the Rajya Sabha.
3. Once motion accepted the three members committee constituted by the Speaker or
chairman of LS or RS respectively.
4. 1 member from the CJI and other judges of SC; 1 member from CJ of HC; and a distinguished
jurist.
5. Committee shall frame definite charges against the judge on the basis of which investigation
is to proceed and the judge shall be given a reasonable opportunity of presenting his WS and
hearing.
6. If the committees finds the judge guilty then article 124(4) proceedings initiated.
7. Upon approval from the 2/3rd members of the house present and voting, the President shall
remove the judge on the ground of proved misbehaviour and incapacity.
8. K Veeraswami vs. Union of India (1991) 3 SCC 655