Supreme Court and High Courts

Prerequisites: The Judiciary — overview · Exploitation, Religion, Minorities and Remedies (Articles 23–32)

The Hook: Who Appoints the Judges?

The Core Concept

Structure of the judiciary

graph TD
    A[Supreme Court - Articles 124 to 147] --> B[High Courts - Articles 214 to 231]
    B --> C[District and Sessions Courts - Articles 233 to 237]
    C --> D[Civil: Sub-judge, Munsiff courts]
    C --> E[Criminal: Chief Judicial Magistrate, Judicial Magistrates]

Unlike the American model, India has one integrated hierarchy that enforces both Union and State laws.

The Supreme Court — composition and judges

Appointment — the four Judges cases

The collegium is a judge-made system; the word does not appear in the Constitution. The process is guided by a Memorandum of Procedure agreed between the judiciary and the government.

Removal — the Judges (Inquiry) Act, 1968

graph TD
    A[Removal motion: signed by 100 Lok Sabha members or 50 Rajya Sabha members] --> B[Speaker or Chairman may admit or refuse]
    B --> C[Three-member inquiry committee: a Supreme Court judge or CJI, a High Court Chief Justice, a distinguished jurist]
    C --> D{Committee finds misbehaviour or incapacity?}
    D -->|No| E[Motion not proceeded with]
    D -->|Yes| F[Each House passes the motion by special majority in the same session]
    F --> G[Address to the President; President orders removal]

No judge of the Supreme Court or a High Court has been removed by this process so far. A motion against Justice V. Ramaswami (1993) failed in the Lok Sabha; in 2011, the Rajya Sabha passed a motion against Justice Soumitra Sen of the Calcutta High Court, who resigned before the Lok Sabha took it up.

Jurisdiction and powers of the Supreme Court

Constitution benches: any substantial question of law about the interpretation of the Constitution must be heard by at least five judges (Article 145(3)).

The High Courts

Judicial review and PIL

• Judicial review — the power to declare legislative and executive acts unconstitutional — flows from Articles 13, 32, 131–136, 143, 226, 227 and 246. It is part of the basic structure (L. Chandra Kumar, 1997).
• Public Interest Litigation (PIL) relaxed the rule of locus standi: any public-spirited person may approach the court on behalf of those who cannot. Hussainara Khatoon (1979) on undertrial prisoners and S.P. Gupta (1981) on standing are early landmarks. The Court has even treated letters and postcards as petitions (“epistolary jurisdiction”).
• Judicial activism vs overreach: activism fills governance gaps (environment, prisoners’ rights, custodial violence); overreach is criticised when courts take over policy or executive functions.

Safeguards of judicial independence

Mode of appointment with judicial primacy; security of tenure; salaries charged on the Consolidated Fund and protected from reduction; conduct of judges cannot be discussed in Parliament (Article 121) or State legislatures (Article 211) except on a removal motion; ban on practice after retirement; contempt powers; Parliament cannot curtail the Supreme Court’s jurisdiction under Article 32; separation of the judiciary from the executive (Article 50).

Memory Anchors

Age ladder: Supreme Court 65, High Court 62 — “Sixty-five at the Summit, sixty-two in the States.”

Qualifications: “5–10–Jurist” for the Supreme Court (5 years as HC judge, 10 years as HC advocate, or distinguished jurist); “10–10” for High Courts (10 years judicial office, 10 years advocate) — and no jurist route to a High Court.

Judges cases: “1981 Executive, 1993 Three, 1998 Five, 2015 NJAC out” → primacy to the executive; collegium of three; collegium of five; NJAC struck down.

Removal motion signatures: “100 or 50” → 100 Lok Sabha members or 50 Rajya Sabha members.

Jurisdiction mnemonic: “Old Wise Advisors Speak Rarely” → Original (131) · Writ (32) · Appellate (132–134) · Special leave (136) · Review (137) — plus Advisory (143).

One-line Mains hook: the judiciary is the “guardian of the Constitution” — and the collegium debate asks who guards the guardians.

For Prelims

For Mains

• Dimensions: collegium vs NJAC; transparency in appointments; diversity on the bench; pendency and vacancies; judicial activism vs overreach; use of Article 142; contempt powers and free speech; post-retirement appointments.
• Keywords: judicial independence, judicial accountability, separation of powers, collegium, Memorandum of Procedure, epistolary jurisdiction, judicial restraint.
• Value-addition: the four Judges cases; L. Chandra Kumar (1997) on judicial review; Hussainara Khatoon (1979) on speedy trial and PIL; Rupa Ashok Hurra (2002) on the curative petition.

Common Traps

In the News

• January 2024 — the Supreme Court marked the start of its 75th year (it was inaugurated on 28 January 1950).

Practice

Prelims

Mains

Quick Revision

Key Takeaways

Related Topics

• Judiciary — quick revision
• Judiciary — practice questions
• Amendment Procedure and the Basic Structure
• Exploitation, Religion, Minorities and Remedies (Articles 23–32)
• Statutory, Regulatory and Quasi-Judicial Bodies