Author: Raunak Raj Tiwari


The Supreme Court of our country is treated as the guardian of the constitution. The Constitution is the supreme law of the land. Our constitution is the lengthiest written constitution of the world and therefore it is not free from ambiguities and its meaning is likely to be interpreted differently by different authorities at different times. Independent judiciary maintains the supremacy of the constitution, as it is an independent and impartial authority to decide any dispute arising between centre and state. The Supreme Court has been called upon to safeguard civil and minority rights and plays the role of guardian of the social revolution.

The importance of the Supreme Court in a democratic setup is unparalleled. The judiciary plays an important role in interpreting and applying the law and adjudicating upon controversies. It is the function of the courts to maintain rule of law in the country. Judiciary is a watching tower above all the other limbs of the state


Composition of Supreme Court:

The Supreme Court of India has been established by Article 124 of the constitution which prescribes about establishment and constitution of the Supreme Court. The fundamental principle behind this is that:

“The number of judges of the Supreme Court shall be in increasing order & cannot be decreased by the parliament.”

The parliament can increase the number of judges but it should be as per law. In 1950 when the constitution of India has enacted the Supreme Court comprised of 7 judges and one Chief Justice. The strength of Supreme Court judges in 1956 was 10 but in 1977 and again this was increased to 17 excluding the Chief Justice of India. In 1986 it was again increased to 25 excluding the Chief Justice. The strength of the Supreme Court was again increased to 33 excluding the Chief Justice of India. Nowhere in the constitution has it prescribed minimum number of judges who will constitute a bench for hearing cases.

Appointment of Judges:

Article 124(2) of the Constitution of India provides for:

“Every judge of the Supreme Court shall be appointed by the President by warrant under his hand & seal 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 & shall hold office until he attains the age of sixty-five years”.

The judges of the Supreme Court are appointed by the executive with the consultation of legal experts. Our constitution does not provide any discretionary power to the executive regarding the appointment of the judges. Before appointing a judge the executive has to consult the judges of the Supreme Court & High Court in the appointment of the judges of the Supreme Court.


The judge of the Supreme Court shall be appointed by the President of India. The constitution empowers for the same under Article 124(2).

In case of appointment of a judge of a Supreme Court, the President of India has to consult the Chief Justice of India & the other two senior most judges of the Supreme Court. President of India must consult the Chief Justice of India for appointing a judge in Supreme Court. This provision which gave the Chief Justice & other Judges the status of a consultant & left the decision to the executive has been interpreted by the Supreme Court in different cases in different ways.


S.P. Gupta v Union of India: Judges Transfer Case Number I

A seven-judge bench, led by Justice P. Bhagwati, declared that the executive has absolute control over judicial appointments, the judiciary is merely to be consulted in appointments; “primacy” of the CJI’S recommendation to the president can be refused for “cogent reasons”. It meant that the power of appointment of judges is “solely & exclusively” vested in central government. The court further stated that consultation does not mean concurrence.

Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441: Judges Transfer Case Number II

A nine-bench judge of the Supreme Court by a 7:2 majority overruled its earlier decision of Judges Transfer Case      Number I,& held that in the matter regarding the appointment of judges of the Supreme Court or any High Court the Chief Justice of India should have primacy. The CJI should have a “primal” role in the appointment & transfer of judges, in consultation with the president. The Chief Justice was empowered to take into accounts the views of the two senior most judges, who are required to be consulted by him. The Chief Justice’s views would be the collective opinion of himself & other senior most judges. The role of the executive in the appointment process was reduced to a minimum & political influence was eliminated.

In re Presidential Reference AIR 1999 SC 1: Transfer of Judges Case III

In July 1998, the President has sought the court’s opinion on the nine issues relating to the appointment of Supreme Court judges & transfer of High Court judges. The 11th Presidential reference sought clarification on certain doubts over the consultation process to be adopted by the Chief Justice of India as provided in the 1993 case relating to judges appointment & transfer opinion.

Supreme Court held that the “consultation process to be adopted by the CJI requires consultation of the plurality of judges.” The sole opinion of the CJI would not constitute a consultation process and if the guidelines regarding the recommendation are not complied with then it would not be binding on the government.

“The collegiums should make the decision in consensus & unless the opinion of the collegiums is in conformity with that of the CJI, no recommendation should be made.”

Tenure of Judges are Fixed:

Article 124(4) of the Constitution provides for:

“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 the house present & voting has been presented to the president in the same session for such removal on the grounds of proved misbehaviour or incapacity”.

“A judge of the Supreme Court holds office until he attains the age of 65 years”.


A Judge of the Supreme Court can be removed from his office on grounds of a) misbehaviour, or b) incapacity by the procedure prescribed by the constitution under Article 124(4). The parliament is empowered to exercise the power to supplement the provision of constitution in regard to enacted The Judges Inquiry Act, 1968.

Parliament can extend, but cannot curtail the jurisdiction & power of the Supreme Court:

Under Article 138 of the constitution it empowers the parliament to exceed the jurisdiction of the courts, but at the same time it puts a restriction on the parliament not to curtail the jurisdiction & power of the Supreme Court.

Power to punish for its contempt:

Article 129 of the Constitution provides for:

“The Supreme Court shall be a court of record & shall have all the powers of such a court including the power to punish for contempt of itself.

The Supreme’s Court power to punish for the contempt is not limited to contempt of itself but extends to punishing contempt of all courts & tribunals throughout the country. Criminal Contempt provides wide power enough to include any act which would tend to interfere with the administration of justice or which would lower the dignity and authority of the court.


In Delhi Judicial Service Association v State of Gujarat (1991) 4 SCC 406:

The Chief Judicial Magistrate was assaulted, & arrested on flimsy grounds, handcuffed, tied with rope. His photos were taken and were published in the newspaper by the police officer.  The police officer was charged for contempt of court and proceeding against the officials started.

It was contended by the respondent that the Supreme Court had no power to quash the criminal proceeding against the Chief Judicial Magistrate. But the court stated that the inherent power under Article 142 coupled with the plenary & residuary power under Article 32 & 136 give it the power to quash criminal proceeding pending before any court to do complete justice in the matter before Supreme Court.

The Supreme Court sentenced the police officers and quashed the criminal proceeding against the Chief Judicial Magistrate. The police officials were held for criminal contempt under the Contempt of Courts Act, 1971.


The Supreme Court as from the above discussion hold a prominent position as far as the institution of judiciary is concerned. It is clear from the historical overview that judicial independence has faced many obstacles in the past especially about the appointment and the transfer of judges. Supreme Court have always tried to uphold the independence of the judiciary and have always said that the independence of the judiciary is a basic feature of the Constitution. Supreme Courts has been made independent for the smooth functioning of the Constitution and a realization of a democratic society based on the rule of law.