THE UNION JUDICIARY

(ARTICLES 124-147)
This topic covers the following heads-
1. Introduction
2. Appointment of the Chief Justice of India
3. Appointment of the Judges of the Supreme Court
4. Qualifications
5. Term of Office
6. Salary and Allowances
7. Removal of the Judge of Supreme Court
8. Prohibition of Practice
9. Appointment of Acting Chief Justice
10. Adhoc Judges (Article 127)
11. Independence of Judiciary
12. Jurisdiction of Supreme Court
1. Original Jurisdiction
i) Writ Jurisdiction (Article 32)
ii) Exclusive Jurisdiction (Article 131)
2. Appellate Jurisdiction
i) Interpretation of the Constitution (Article 132)
ii) Civil Matters (Article 133)
iii) Criminal Matters (Article 134)
iv) Special Leave to Appeal (Article 136)
3. Advisory Jurisdiction (Article 143)

1) Introduction: There are three main organs of the Government/State namely, the
Executive, the Legislature and the Judiciary. The administration of justice in India is
vested in the Union Judiciary headed by the Supreme Court of India. Article 124 of
Constitution provides for the establishment of Supreme Court, consisting of a Chief
Justice of India and such other number of judges as prescribed/determined by the
Parliament from time to time. By the time, Constitution came into force, the number of
judges was seven (i.e the Chief Justice of India and seven other Judges) as per Article
124(1) of the Constitution, which reads as follows-

“There shall be a Supreme Court of India consisting of a Chief Justice of India and
until Parliament by law prescribes a larger number of not more than seven other judges.”

However, in view of population explosion resulting in increase in litigation and

crime rate, the number of judges is to be increased from time to time. As such, the
number of judges of the Supreme Court was increased to twenty five vide the Supreme
Court (Number of Judges) Amendment Act, 1986 and the number further enhanced to
thirty vide the Supreme Court (Number of Judges) Amendment Act, 2008. Now, the
Supreme Court comprises of the Chief Justice of India and thirty other Judges.

(1) Appointment of Chief Justice of India: The President of India is empowered to

appoint the Chief Justice of India on his/her own without consulting any one/authority.
The practice is to appoint the senior-most Judge of the Supreme Court. On 25 th April,
1973 (when, Mrs Indira Gandhi was the Prime Minister of India) Justice A N Ray, the
then Judge, Supreme Court was appointed as the Chief Justice superseding three judges,
who were senior to Justice A N Ray. The appointment of Justice, A N Ray as the Chief
Justice gave room for lot of controversy and the Supreme Court of Bar Association
condemned the appointment and the three senior judges namely, Justice Shelat, Justice
Hegde and Justice Groven tendered resignation to their posts if protest of suppressing/out
weighting their seniority.
The Government justified its action of the grounds of-
i) Under Article 124 of the Constitution has absolute discretion to appoint any one
whom he finds suitable for the post of the Chief Justice of India.
ii) The Law Commission, in appointing the Chief Justice, suggested that merit
should be judged and seniority should not only be the main consideration and the
government followed the recommendations of the Law Commission in appointing
the Chief Justice.
iii) The Executive should take into consideration the mental outlook or the social
philosophy of Judges.

In 1977, the Janata Party won with huge majority and formed the Central
Government. They revived the old practice of appointing the Chief Justice of the
Supreme Court on the basis of seniority. The rule of seniority, though a mechanical rule,
is beyond controversy and will ensure independence of Judiciary.
In S C Advocate-on-Record Association v Union of India (1993) 4 SCC 441) –
the majority has held that the appointment to the office of the Chief Justice of India
should be made on the basis of seniority, that is the senior-most Judge considered suitable
to hold office be appointed as the Chief Justice.
The Constitution (Ninety-ninth Amendment) Act, 2014 (dated 31-12-2014)
brought about drastic changes with regard to the appointment of the Chief Justice of India
and other Judges of the Supreme Court and other Judges of the various High Courts in
India. The Amendment Act of 2014 envisages the Constitution of the National Judicial
Appointments Commission consisting of –
a) The Chief Justice of India as the Chairperson (Ex-officio);
b) Two senior most Judges next to the Chief Justice of India as members (Ex-Officio);
c) The Union Minister of law and Justice as Member (Ex-officio);
d) Two eminent persons nominated by the committee headed by the Prime Minister, the
Chief Justice of India and the leader of the opposition in the House of People (Lok
Sabha)/the leader of the Single Largest Opposition Party in the House of the People.
One of the two nominated members shall belong to Scheduled Caste or Scheduled
Tribe or other Backward Classes or Minorities or a woman (Article 124, A inserted
by the Constitution (Ninety-ninth Amendment) Act, 2014 (dated 31-12-2014).

3) Appointment of Judges (Article 124(2)): Till the passing of the Constitution

(Ninety-ninth) Amendment Act, 2014, dated 31st December 2015, the Chief
Justice of Supreme Court was appointed by the president of India with the
consultation of such of the Judges of the Supreme Court and the High Courts’ as
he deems fit/necessary for the purpose. But, in appointing other Judges, the
President shall always consult the Chief Justice of India.

In S.P Gupta v Union of India, popularly known as the ‘Judges

Transfer case’ (AIR 1982 SC 149)- It has been held that the ultimate power to
appoint judges is vested in the Executive from whose dominance and
subordination it was sought to be protected. It has been observed that the
Executive should have primacy since it is accountable to the people while the
Judiciary has no such accountability. The Supreme Court had abdicated its power
by ruling that Constitutional functionaries had merely a consultative role and the
power of appointment of Judges is ‘solely and exclusively’ vested in the Central
Government.

In S.C Advocates on Record Association v Union of India (AIR 1994

SC 268) (Judges Transfer Case-II)- the nine judge bench of the Supreme Court
overruled its earlier decision in S.P Gupta v Union of India. The Supreme Court
has held that the initiation of the proposal for appointment in the case of Supreme
Court must be by the Chief Justice of India and in the case of a High Court, by the
Chief Justice of the High Court. In the event of conflicting opinions as to the
person to be appointed as the Judge of the High Court or of the Supreme Court the
opinion of the judiciary symbolized by the view of the Chief Justice of India, has
primacy. The opinion of the Chief Justice of India which has primacy in the
matter of recommendation for appointment to the Supreme Court has to be formed
in consultation with a collegiums consisting of the two senior-most puisne Judges
of the Supreme Court who give their opinion in writing. Constitutional
functionaries must act collectively in judicial appointments. No Judge can be
appointed by the Union Government without consulting the Chief Justice of India.
The Chief Justice is appointed by seniority.
The Supreme Court has made it clear that in exceptional cases alone, for
stated strong cogent reasons disclosed to the Chief Justice of India indicating that
 the recommended is not suitable for appointment that appointment recommended
by the Chief Justice of India may not be made. However, if the stated reasons are
not accepted by the Chief Justice of India and the other Judges of the Supreme
Court who have been consulted in the matter, on unanimous reiteration of the
recommendation by the Chief Justice of India, the appointment should be made.
The Constitution (Ninety ninth Amendment) Act 2014, brought about
drastic/substantial change in Article 124 with regard to the appointment of the
Judges of the Supreme Court and various High Courts’ in India as stated below:
99 Amendment Act:
Amendment of Article 124-
2 In Article 124 of the Constitution, in clause (2)-
a) For the words “after consultation with such of the Judges of the Supreme Court and
of the High Courts in the States as the President may deem necessary for the
purpose”. The words, figures and letter “on the recommendation of the National
Judicial Appointments Commission referred to in Article 124A” shall be substituted;
b) The first proviso shall be omitted;
c) In the second proviso, for the words “provided further that”, the words “Provided
that” shall be substituted.
Insertion of new Articles 124A, 124B and 124C:
3 After Article 124 of the Constitution, the following Articles shall be inserted,
namely:-
National Judicial Appointments Commission-“124A(1) There shall be a Commission
to be known as the National Judicial Appointments’ Commission consisting of the
following, namely:
(a) The Chief Justice of India, Chairperson, ex officio;
(b) Two other senior Judges of the Supreme Court next to the Chief Justice of India-
Member, ex officio;
(c) The Union Minister in charge of Law and Justice-Member, ex officio;
(d) Two eminent persons to be nominated by the committee consisting of the Prime
Minister, the Chief Justice of India and the Leader of Opposition in the House of
the People or where there is no such Leader of Opposition, then, the Leader of
single largest Opposition party in the House of the People-Members:
Provided that one of the eminent person shall be nominated from amongst
the persons belonging to the Scheduled Castes, the Scheduled Tribes, other
Backward Classes, Minorities or Women:
Provided further that an eminent person shall be nominated for a period of
three years and shall not be eligible for re-nomination.
2) No act or proceedings of the National Judicial Appointments Commission shall be
questioned or be invalidated merely on the ground of the existence of any vacancy
or defect in the constitution of the Commission.
 Functions of Commission: 124B. It shall be the duty of the National
Judicial Appointments Commission to –
a) Recommend persons for appointment as Chief Justice of India, Judges of the
Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
b) Recommend transfer of Chief Justices and other Judges of High Courts from one
High Court to any other High Court; and
c) Ensure that the person recommended is of ability and integrity.
Power of Parliament to make law: 124C. Parliament may, by law, regulate the
procedure for the appointment of Chief Justice of India and other Judges of the
Supreme Court and Chief Justices and other Judges of High Courts and empower the
Commission to lay down by regulations the procedure for the discharge of its
functions, the manner of selection of persons for appointment and such other matters
as may be considered necessary by it.”
4) Qualifications (Article 124(3): Article 124(c) of the Indian Constitution
prescribes qualifications for the position of the Judge, Supreme Court. A person
to be appointed as the Judge of the Supreme Court must possess the following
qualifications:
a) He must be a citizen of India, and
b) He has been for at least five years a Judge of a High Court or of two or more
High Courts in succession; or
c) Has been for at least ten years an advocate of a High Court or of two or more
High Courts in succession; or
d) He is in the opinion of the President, a distinguished jurist.

A person to be appointed a Judge of the Supreme Court must possess two

qualifications. Firstly, he must be a citizen of India and secondly, he must
possess either of the qualifications mentioned in clauses (b) to (d) above.
5) Term of Office (Article 124(2): The Judge of the Supreme Court holds office till
he attains the age of 65 years. No minimum age is prescribed for appointment as
a Judge of the Supreme Court, nor any fixed period of office. Once appointed, a
Judge of the Supreme Court may cease to be so on the happening of (a) attaining
the age of 65 years or (b) resigning of his office by writing or (c) being removed
by the President.
In Madras High Court Advocates’ Association v Dr A S Anand, Hon’ble Chief
Justice of India (AIR 2001 SC 970)- it has been held that no writ lies for
determining the age of the Judge.
6) Salary and Allowances: Article 125 of the Constitution provides that-
“1. There shall be paid to the Judges of the Supreme Court such salaries as may
be determined by parliament by law and, until provision in that behalf if so made,
such salaries as are specified in the Second Schedule.
 2. Every Judge shall be entitled to such privileges and allowances and to such rights
in respect of leave of absence and pension as may from time to time be determined by
or under law made by Parliament and, until so determined, to such privileges,
allowances and rights as are specified in the Second Schedule.

Provided that neither the privileges nor the allowances of a Judge nor his rights in
respect of leave of absence or pension shall be varied to his disadvantage after his
appointment”. (These matters are governed by the Supreme Court Judges (Condition
of Service) Act, 1958).

Regarding provisions as to Judges of Supreme Court, Part D Part 9(1) to (5) provides
that-
“9(1): There shall be paid to the Judges of the Supreme Court, in respect of time spent
on actual service, salary at the following rates per mensem, that is to say:
The Chief Justice Rs.33,000/- (w.e.f 01-01-1996)
Any other Judge Rs.30,000/-
Provided that if a Judge of the Supreme Court at the time of his appointment is in
receipt of a person (other than a disabled or wounded person) in respect of any
previous service under the government of India or any of its predecessor
Governments or under the Government of a State or any of its predecessor
Governments, his salary in respect of service in the Supreme Court shall be reduced-
a) By the amount of that pension, and
b) If he has, before such appointment, received in lieu of a portion of the pension
due to him in respect of such previous service the commuted value thereof, by the
amount of that portion of the pension, and
c) If he has, before such appointment, received a retirement gratuity in respect of
such previous service, by the pension equivalent of that gratuity.
2) Every Judge of the Supreme Court shall be entitled without payment of rent to
the use of an official residence.
3) Nothing in sub-paragraph (2) of this paragraph shall apply to a Judge who,
immediately before the commencement of this Constitution-
a) was holding office as the Chief Justice of the Federal Court and has become on such
commencement the Chief Justice of the Supreme Court under clause (1) of Article 374,
or
b) was holding office as any other Judge of the Federal Court and has on such
commencement become a Judge; (other than the Chief Justice) of the Supreme Court
under the said clause, during the period he holds office as such Chief Justice or other
Judge, and every Judge who so becomes the Chief Justice or other Judge of the Supreme
Court shall, in respect of time spent on actual service as such Chief Justice or other
Judge, as the case may be, be entitled to receive in addition to the salary specified in sub-
paragraph (1) of this paragraph as special pay an amount equivalent to the difference
 between the salary so specified and the salary which he was drawing immediately before
such commencement.

4) Every Judge of the Supreme Court shall receive such reasonable allowances to
reimburse him for expenses incurred in travelling on duty within the territory of India and
shall be afforded such reasonable facilities in connection with travelling as the President
may from time prescribe.
5) The rights in respect of leave of absence (including leave allowances) and pension
of the Judges of the Supreme Court shall be governed by the provisions which,
immediately before the commencement of this Constitution, were applicable to the Judges
of the Federal Court.
(7) Removal of the Judge of the Supreme Court (Article 124(2): As per proviso
(b) of Article 124(2) of the Constitution, a Judge may be removed from his office in the
manner provided in clause (4).
Clause (4) of the Article 124 of the Constitution provides that “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 the House and by a majority of not less than two thirds of the members of
the House present and voting has been presented to the President in the same session for
such removal on the ground of proved misbehaviour of incapacity.”
Clause (5) of the Article 124 of the Constitution provides that Parliament may by
a 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).
(8) Prohibition of Practice (Article 124(7): According to Article 124(7) of the
Constitution, 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. However as per
Article 128 of the Constitution a retired Judge may at any time held the office of a Judge
when requested by the Chief Justice of India with the consent of the President and he
consents so to do.
(9) Appointment of Acting Chief Justice (Article 126): Article 126 of the
Constitution provides that when the office of Chief Justice of India is vacant on when the
Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his
office, the duties of the office shall be performed by such one of the other Judges of the
Court as the President may appoint for the purpose.
(10) Ad-hoc Judges (Article 127): Clause (1) of Article 127 provides that if at
any time there should not be a quorum of the Judges available to hold or continue any
session of the Court, the Chief Justice may, with the previous consent of the President and
after consultation with the Chief Justice of the High Court concerned, request in writing, a
Judge of a High Court to act as ad hoc Judge in the Supreme Court, for such period as may
be necessary. The Judge so appointed should be qualified to be appointed as a Judge of the
Supreme Court.
 While so attending and acting as ad hoc Judge, the Judge shall have the
jurisdiction, powers and privilege, of a Judge of the Supreme Court. The ad hoc Judge shall
attend the sitting of the Court in priority to other duties of his office at the time and for the
period for which his attendance is required.
(11) Independence of Judiciary: The Constitution of India provides various
provisions to ensure the independence of Judiciary headed by the Supreme Court as stated
hereunder:
1. Security of Tenure (Appointment, tenure and removal): The Judges of the Supreme
Court are appointed by the President of India. The Chief Justice also is appointed by the
President with the consultation of the other Judges of the Supreme Court and High Courts
(if he finds such consultation is necessary). He holds office until he attains the age of 65
years. His term of office is fully secured. The Judge of Supreme Court or High Court
cannot be removed/terminated except by impeachment motion with two thirds majority in
the Parliament. In March, 1990, such impeachment motion was made against Justice V
Ramaswamy, the then Judge, Supreme Court. But, it was defeated since there was no
two third majority in the House. Only 200 members voted in favour of the impeachment
motion against him.

2. Jurisdiction: The Constitution conferred wide powers on the jurisdiction of the

Supreme Court. The Parliament may extend its jurisdiction, but cannot curtail the
same.
3. Salary: The Judges are duly paid ad their salaries and allowances cannot be altered
except in a grave financial emergency.
4. No discussion in the House: According to Articles 105 and 194 of the Constitution,
the members of the House (Parliament or State legislature) are privileged to discuss
any matter without the fear of defamation proceedings against them. However, this
privilege is subject to the restriction that the conduct of the Judges should not be
discussed in the House.
5. Contempt of Court: Supreme Court and High Courts are empowered to punish those,
who are guilty of the contempt of Court (Articles 129 & 125). This power is very
essential for maintaining the independence of judiciary.
6. Separation of Judiciary from Executive: Article 50 directs the State to take steps to
separate the judiciary from the executive in the public services of the State. It
emphasises the need of securing the judiciary from the interference by the executive.
(12) Jurisdiction of the Supreme Court: The Supreme Court of India is the Apex Court
of our Country. Its jurisdiction may be explained with reference to the following
heads:
1. Original Jurisdiction
i) Writ Jurisdiction (Article 32)
ii) Exclusive Jurisdiction (Article 131)
 2.Appellate Jurisdiction
i) Interpretation of the Constitution (Article 132)
ii) Civil Matters (Article 133)
iii)Criminal Matters (Article 134)
iv. Special Leave to Appeal (Article 136)

3.Advisory Jurisdiction (Article 143)

1. Original Jurisdiction: The Original Jurisdiction of the Supreme Court may be
explained as follows:
i) Enforcement of Fundamental Rights (Article 32); and
ii) Centre-State Disputes (Article 131)

i) Enforcement of Fundamental Rights (Article 32):

Article 32 of the Constitution confers original jurisdiction on the Supreme Court to
enforce Fundamental Rights. It is empowered to issue direction or orders or different
writs viz., writ of habeas corpus, mandamus, prohibition etc., under Article 32. An
individual can directly approach the Supreme Court.
Article 32 confers wide (enormous) power on the Supreme Court. Article 32 empowers
Supreme Court to relax the traditional rule of Locus Standi and allows public interest
litigations at the instance of public spirited citizens.
Under Article 32, the Supreme Court can provide relief to bonded labour, under trial
prisoners (Sunil Batra Case). Victims of police torture (Saheli, A Women’s Resource
Centre v Commissioner of Police, Delhi) etc.,

ii) Centre-State Disputes (Article 131): Being the Chief appellate tribunal, it has original
jurisdiction to settle the disputes.

a) Between the Centre (Union of India) and one or more States;

b) Between Centre and State/States on one side and one or more States on the other side,
and
c) Between two or more States.

2. Appellate Jurisdiction: It may be explained as follows:

i) Interpretation of the Constitution (Article 132): Article 132 (1) empowers the Supreme
Court to interpret any matter involving the question of law as referred to it by High Court under
Article 134-A.
ii) Civil Matters (Article 133): Article 133 confers jurisdiction on the Supreme Court to hear
appeal from any judgement by the High Court in civil matters. It must be certified by the High
Court under Article 134-A.
iii) Criminal Matters (Article 134): According to Article 134(a)(b), an appeal may lie before
the Supreme Court from any sentence by High Court without the certificate of the High
Court.
According to Article 134(c) an appeal lies before the Supreme Court, if the High Court
certifies under Article 134-A.
iv) Special Leave to Appeal (Article 136): Article 136 of the India Constitution empowers the
Supreme Court to grant Special Leave to appeal from any judgement, decree, determination,
sentence or order in any matter passed by any Court or Tribunal. The Supreme Court can
exercise discretionary power in this connection.
Grounds for granting Special Leave: The remedy under Article 136 is extra-ordinary and
discretionary, and hence, is granted in exceptional cases on the following grounds. If the
tribunal-
1. Has acted in excess of the jurisdiction;
2. Failed to exercise its apparent jurisdiction;
3. Committed an error of law apparent on the face of the record;
4. Acted illegally;
5. Violated the principles of natural justice;
6. the decision involved an important question of law.

In view of the increasing number of appeals under Article 136, the Supreme Court suggested
the Government (Janata Government) to curtail its jurisdiction under Article 136. But the
proposal could not be materialised since the lawyers opposed it.

3.Advisory Jurisdiction (Article 143): Article 143 of the Constitution speaks about the
advisory jurisdiction of the Supreme Court. The President of India refers to the Supreme Court,
for its opinion, any matter, which involves any question of fact or law having public importance.
Then, the Supreme Court gives its advisory opinion. The President may or may not follow the
same since it is not mandatory.

The State Executive

(Articles 153-167 & 213)
(The Governor)
Chapter II of Part VI of the Constitution containing Articles 153 to 167 and 213 deal with
the State Executive. It provides for various provisions relating to the Governor, the State Council
of Ministers and the Advocate General of the State, and the conduct of Government business.
Article 153 deals with Governors of the State. Article 124 deals with the Executive Power of the
State. Articles 163 and 164 lay down the provisions relating to the Council of Ministers. Article
165 empowers the Governor to appoint Advocate General of the State. Articles 166 and 167 lay
down the provisions with regard to conduct of Government business. Finally Article 213
(Chapter IV) empowers the Governor of the State to promulgate ordinances during recess of
legislature. This lecture covers the following heads-
1. The Governor
i) Qualifications (Article 157)
ii) Term of Office
iii) Powers of Governor
a) Executive Powers (Article 154(1)
b) Financial Powers (Articles 202 & 203(3).
c) Legislative Powers (Article 168(1)
d) Ordinance Making Power (Article 213)
e) Judicial Powers and
f) Power to grant pardons (Article 161)