Role: highest appellate and constitutional court in India
Composition: 34 judges, including the Chief Justice
Location: New Delhi
Year Established: 1950
As the highest court in India, the Supreme Court’s judgments are binding on all other courts in the country. It serves both as the final court of appeals and final interpreter of the Constitution. Owing to these vast powers, many including Attorney General K.K. Venugopal have labelled it among the most powerful courts in the world. Its authority stems from the Constitution of India.
The Supreme Court has jurisdiction over – the authority to hear – a wide range of cases. Its jurisdiction is generally classified into original, appellate and advisory.
Under its original jurisdiction, the Court enforces fundamental rights, hears federal disputes and can transfer cases. As a guardian of fundamental rights, the Court serves to protect citizens from the excesses of the legislature and executive. With regards to federal disputes, the Court has the exclusive authority to settle disputes between the Union and a state, or between two states. Finally, its original jurisdiction also empowers it to transfer cases – for example from one High Court to another.
While cases that fall under the Court’s original jurisdiction generally garner the most public attention, cases that fall under its appellate and extraordinary appellate jurisdictions make up a vast majority of its docket. Its appellate authority allows it to hear constitutional, civil and criminal appeals against High Court judgments. Subject to a few exceptions, litigants seeking to appeal a High Court judgment, must first seek 'leave' from the High Court. Meaning, the High Court has to certify that the appeal entails a question that needs to be settled by the Supreme Court.
Litigants can circumvent this requirement for a certification by requesting the Supreme Court for ‘special leave’. Under the Supreme Court’s extraordinary appellate jurisdiction, it has wide discretionary power to grant special leave to appeals against any order by any lower court or tribunal. Such cases are called Special Leave Petition (SLPs) and constitute around 80% of the Court’s docket (see T. Khaitan’s research).
Finally, the Court also has an advisory jurisdiction. The President of India has the power to refer questions of public importance or disputes arising out of pre-constitutional arrangements to the Supreme Court. Since the Court’s establishment, there have been fewer than 50 cases arising out of a Presidential reference (according to SCC Online). To put this in perspective, the number of cases pending before the Court at the beginning of 2020 was nearly 60,000.
This overview of the Supreme Court’s jurisdiction is not exhaustive. A more detailed breakdown can be found here.
The Supreme Court resolves disputes by considering the arguments advanced by parties on both sides and then delivering a judgment. First, parties submit their written arguments through their advocates. These, for example, may take the form of Writ Petitions or Civil Appeals. If the Court chooses to hear the case, then advocates from both sides present oral argument in public hearings. After oral arguments conclude, the Court usually does not immediately produce a judgment, rather it ‘reserves’ the case for judgment at a later date.
A judgment comprises an order paired with reasoning. In the order, judges issue directions and/or reliefs to the parties. Further, judges explain why they issued the order by providing written reasons. This exercise of reason-giving adds crucial legitimacy to judgments. Importantly, it serves to prevent judges from arbitrarily issuing orders.
Sometimes cases may have multiple judgments, if the judges hearing it disagree with each other. In such instances, the decision of the majority is binding. For example, in the Sabarimala Temple Entry dispute, only one of the four judges upheld the temple’s custom of excluding women as legal. Therefore, the binding decision came from the other four judges – namely that the custom was unconstitutional.
Most Supreme Court cases are heard by benches comprising two or three judges. The Supreme Court does not hear cases en banc – meaning, not all 34 judges preside over each case. Generally, larger benches are formed if the Court must revisit an earlier judgment. A judgment can only be overruled by a subsequent larger bench (subject to some exceptions). In addition, larger benches are formed (specifically of five or more judges) to hear cases involving substantial questions as to the interpretation of the Constitution. Until now, the most number of judges to sit on a single bench was 13 in the Kesavananda Bharati case.
A product of the Constitution of India, the Supreme Court of India came into being on 26 January 1950. This section provides a short overview of the Court’s historical origins under British rule. Further, it looks at some of the key developments in post-independent India.
Under British rule, the highest court of appeal was the Privy Council (officially, the Judicial Committee of Privy Council after 1833). At its height, the Privy Council heard appeals from the courts of over 150 colonies and dominions – the equivalent of 1/5th of the human race.
The subcontinent first fell within its jurisdiction in the early 18th century, during the rule of the British East India Company (EIC). The 1726 Royal Charter gave the apex courts (known as Mayor’s Courts) of Calcutta, Bombay and Madras the right to appeal to the Privy Council (then known as King-in-Council).
Image: 'The First Council of Queen Victoria' (1838) by Sir David Wilkie is in the public domain.
The power transfer from the EIC to the Crown in 1857 brought with it certain reforms. Shortly after the transfer of power, the Crown introduced the Indian High Courts Act of 1861. The Act created High Courts in Allahabad, Lahore, Nagpur and Patna. Further, it replaced the Supreme Courts of Calcutta, Madras and Bombay with High Courts. All judgments of the High Courts could be appealed to the Privy Council.
The Privy Council made a significant contribution to stabilizing the Indian legal system, primarily by consolidating precedents under principles of common law. This was perhaps best exemplified when once considers that several members of the Indian Constituent Assembly paid homage to the Privy Council. The Constituent Assembly drafted the Constitution of India. Veteran lawyer-statesman K.M. Munshi observed, “[The Privy Council] has been a great unifying force and for us Indians it became the instrument and embodiment of the rule of law”. Similarly, lawyer Alladi Krishnaswami Ayyar said, “Whatever might be said about the executive government under the regime which has come to an end…there can be no doubt that…the record of the Judicial Committee of the Privy Council has been a splendid one.”
Of course, the Privy Council had its shortcomings. It was often criticized as being inaccessible, both in terms of cost and location (it sat in London). Further, the judges who sat on the Council generally had no familiarity with the specific socio-cultural contexts that disputes from the subcontinent were rooted in. Ultimately this led to calls for a Federal Court of India in the first-half of the 20th century.
Due to the inaccessibility of the Privy Council, the independence movement demanded a “Federal Court of India”. Eventually this demand was fulfilled with the enactment of the Government of India Act, 1935 (came into force in 1937). Part IX of the Act established the Federal Court of India, which served as the court of appeal for the various High Courts. Its judgments were binding on all courts in India.
The Government of India Act (GoI Act) also empowered the Federal Legislature to introduce amendments, so as to confer upon the Federal Court supplemental powers (see Section 215). In many ways, this paved the way for the creation of the Supreme Court. In 1948, the Federal Legislature passed the The Federal Court (Enlargement of Jurisdiction) Act I that abolished direct appeals from High Courts to the Privy Council.
Shortly thereafter, on 24 September 1949, India's connection to the Privy Council came to an end with the passing of the Abolition of Privy Council Jurisdiction Act. With its enactment, even judgments of the Federal Court could no longer be appealed to the Privy Council. When the Privy Council disposed of N.S. Krishnaswami Ayyangar v Perumal Goundman, the last Indian appeal, the two centuries long connection to the Council was finally severed.
Subsequently, the Constitution of India replaced the Federal Court with the Supreme Court of India. The Constitution was ratified on 26 November 1949 and came into force on 26 January 1950. Two days after the Constitution became effective, the Supreme Court was inaugurated on 28 January. Justice H.J. Kania became the first Chief Justice of India.
While the Constitution envisaged a Supreme Court with only eight judges, the rapid increase in the number of cases before the Court necessitated change. Over the years, Parliament has repeatedly introduced amendments to increase the number of sitting Supreme Court judges.
The below table from the Supreme Court’s Annual Report 2018-19 (pg. 47) captures these periodic increases in strength:
Originally, during the early years, all 8 of the Supreme Court judges sat together to hear cases. However, as the number of pending cases increased exponentially, this became impossible. In a practice which continues till this day, the Court began to sit in small benches comprising only two or three judges to hear cases. The Chief Justice began only constituting larger benches of five or more judges to settle ‘a difference of opinion’ or substantial constitutional questions.
Starting in the late 1970s, following Emergency, the Supreme Court of India made a concerted push to make the judiciary more accessible to marginalized communities. It began hearing a new type of case, called the ‘public interest litigation’ (PIL). In doing so, it substantially expanded its role as a constitutional court, allowing itself to proactively hold the other organs of the State accountable to constitutional principles.
In developing its PIL jurisprudence, the Court significantly relaxed the rules of standing in constitutional litigation, to allow ‘public spirited’ individuals and organizations to approach the courts on behalf of the marginalized.
Justice P.N. Bhagwati famously summarized this relaxation in standing in S.P. Gupta (1981): ‘The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding’ (para. 18).
Over the next two decades, the Court evolved its PIL jurisprudence significantly. While a majority of its early PILs were aimed at enforcing the fundamental rights of marginalized persons, by the 1990s it had expanded the scope of PILs to focus on issues of honest and transparent governance.
Justice Dalveer Bhandari offers a succinct account of the history of PILs in State of Uttaranchal v. Balwant Singh Chaufal (2010). He divides the evolution of PILs into three phases (see paras 45-116):
Phase I ‘…deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this court…’
Phase II ‘…deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. etc.’
Phase III ‘...deals with the directions issued by Court in maintaining the probity, transparency and integrity in governance’
Today, PILs continue to play a central role in the Court’s functioning. Many of the Court’s most high profile cases that SC Observer tracks are PILs, such as the Sabarimala Temple Entry, Electoral Disqualification and Cow Vigilantism cases.
From its inauguration on 28 January 1950 until 4 August 1958, the Supreme Court of India operated out of the Parliament building. In fact, its first sitting was in the Rajya Sabha chamber itself. After eight years in Parliament, it shifted to its current building.
The original Supreme Court building was designed by Ganesh Bhikaji Deolalikar, who is known for being the first Indian to head the Central Public Works. The building, which is described as embodying an ‘Indo-British’ architectural style, employs many of the same motifs found in buildings designed by Edward Lutyens (think Rashtrapati Bhawan).
Throughout the years, the Court has undergone several major renovations. The first was in 1979, when two new wings were added – the East and West Wings. Each contained two new court rooms. Then in 1994, the East and West Wings were connected, allowing space for further court rooms, offices and even two libraries – the judges and advocates’ libraries.
This last decade has seen the most significant renovation. First in 2015, the Court added a new extension block near its Museum, allowing more space for offices. Then in 2019, it added an entirely new complex – the Additional Building Complex. While this new complex is separated from the original complex by a major roadway, the two remain connected by several underground passages. Notably, it houses 258 new lawyers' chambers and series of auditoriums. Its basement has space for 1800 cars to park.
As of now, no major new renovations are expected. Given that the Supreme Court now has a limited capacity to further expand, any future renovations are likely to take the form of modernizations, rather than entirely new buildings.
For more on the architecture of the Supreme Court, see the Annual Report, 2018-19.
One of the largest problems facing the contemporary Supreme Court of India is pendency. Pendency stands for the number of cases pending before the Supreme Court. High pendency can indicate an inefficient court. Although, pendency is also due to factors beyond a court's control and even an efficient court may be plagued by high pendency.
Since 1950, pendency has continuously increased. In 1951 it was 690 cases and by 2018 it was 57,346.
One major exception to the increase in pendency occurred from 1990 to 1997. In 1990, pendency reached its historic maximum of 109,277 cases. Subsequently it saw a dramatic decline, falling to 19,032 cases. The Supreme Court Registrar had altered the way it counted pending cases. It began counting cases that were clubbed together as a single case. In addition, the court brought ‘in district court judges and other judicial officers to club matters together more effectively’. Since the drop, pendency has once again steadily increased.
The above graph also visualizes changes in institution and disposal. The difference in institution and disposal determines pendency. Institution is defined as the number of cases filed and disposal as the number of cases disposed of in a given time period. If on a given year more cases are instituted (filed) than disposed of, pendency will increase – and likewise the opposite holds.
When pendency dropped dramatically from 1990 to 1997, disposal net increased. Further, the difference between institution and disposal for the period does not match the 90,000 case decrease in pendency. This demonstrates how the drop pendency was caused by a change in the way pendency was counted.
Also worthy of our attention is that institution and disposal closely mirror each other. One might not expect this, as institution is dependent on external variables such as population growth, while disposal on internal such as judicial vacancies. However, clearly this cannot be the case, given that our graph demonstrates institution and disposal are strongly correlated. Either disposal is dependent on institution or vice versa. Possible causes for the former could include: (i) a majority of instituted cases are incomplete, i.e. lack necessary documetns, hence are automatically diposed of; (ii) the Registrar has a proportional quota for disposing of cases. A possible cause for the latter could include that perceptions of disposal shape how many persons approach the Court. Further analysis is required to test any of these hypotheses.
The jurisdiction of the Supreme Court can be divided into five cateogires: (1) Original, (2) Appellate, (3) Extraordinary Appellate, (4) Advisory and (5) Plenary.
(a) Citizens (and under certain conditions, non-citizens) can move the Supreme Court to enforce their fundamental rights. Under Article 32 of the Constitution the Court has the power to issue directions, orders or writs ('in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari') to enforce any right under Part III of the Constitution.
(b) Article 131(1) grants the Supreme Court original jurisdiction over any dispute between
• the Government of India and any State
• the Government of India and State on one side and any State on the other side
• two or more States
(c) Under Article 139A, the Court has the power to transfer cases:
• Cases involving the same or substantially same question of law pending before any High Court or another bench of Supreme Court can be transferred to the Supreme Court.
• In the interest of justice, the Supreme Court can transfer cases from one High Court to another.
(e) Article 71 establishes that election disputes with respect to the President or Vice President will be heard by the Supreme Court.
Parties can appeal High Court judgments to the Supreme Court under Articles 132 (Civil, Criminal or Other), 133 (Civil) and 134 (Criminal) of the Constitution. This requires parties to obtain a certificate of appeal from the High Court.
Article 136 of the Constitution empowers the Supreme Court to grant 'special leave' to an appeal against an order by any lower court (or tribunal). Unlike regular appeals, special leave petitions do not require certification from the lower court.
(a) Under Article 143(1) the President may refer to the Supreme Court a question of ‘law’ or ‘fact’ of public importance. However, the Court can decline this Presidential Reference.
(b) Under Article 143(2), the President may refer to the Supreme Court a dispute arising out of pre-constitutional arrangements, such as treaties, agreements, covenants or other similar instruments.
(c) Under Article 317, the President may refer to the Supreme Court an inquiry for removal of the Chairman or any other member of a Public Service Commission.
(a) Under Article 137 the Supreme Court has the power to review any judgment or order pronounced by it.
(b) Article 142 allows any person to file a petition to cure a 'gross miscarriage of justice' or 'prevent abuse of process of law' brought about by a Supreme Court judgment. The grounds for filing curative petitions have been laid down in Rupa Ashok Hurra v. Ashok Hurra.
This section introduces how judges hear cases and how they are appointed to the Supreme Court.
In general, Supreme Court judges sit to hear cases in open court, in what are called benches. Usually benches comprise two to three judges. On occasion, the Court forms five judge benches to examine the correctness of smaller bench decisions. Likewise seven judge benches can be formed to look into a decision of a five judge bench and so on and so forth. The largest bench formed so far comprised thirteen judges in the Kesavananda Bharati case (1973).
The Court also forms benches of five or more judges to hear substantial questions of law ‘as to the interpretation of this Constitution’, as specified under Article 145(3). For example, the Kesavananda Bharati case entailed questions pertaining to the Constitution's Basic Structure. A more contemporary example would be the Sabarimala Temple Entry dispute. The Court formed a five judge bench to interpret questions about the fundamental right to freedom of religion under Article 25 of the Constitution.
The Chief Justice of India decides which cases will be heard by which judges. In particular, the CJI selects both the composition of benches (which judges will sit together) and the cases that are assigned to each bench. This is referred to as the roster system. Aptly, the Chief Justice is called the Master of the Roster.
In an unprecedented move, on 12 January 2018, four judges of the Supreme Court held a press conference to criticize then Chief Justice Dipak Misra. Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph’s primary complaint was that CJI Misra was assigning cases to benches arbitrarily.
They said that while the Chief Justice is the ‘Mater of the Roster’, this does not confer upon him any kind of superior administrative authority. Rather, they asserted that the Chief Justice is merely ‘the first among equals’. They explained that he is only responsible for determining the roster so as to ensure the ‘disciplined and efficient transaction of business’.
As such, they stressed that the Chief Justice can never ‘arrogate to [himself] the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches’. In other words, they cautioned the Chief Justice against assigning cases to his own bench that were being (or going to be) heard by a different bench.
A month after the press conference, Chief Justice Dipak Misra responded by introducing a subject-wise roster system. His aim was to introduce a transparent, rule-bound system for assigning cases. Each bench was assigned a set of subjects and only heard matters pertaining to these subjects. For example, a Bench could be assigned labour, compensation and land acquisition matters (usually benches are assigned around ten subjects). The system came into effect on 5 February 2018.
In addition to introducing the subject-wise roster system, the Court entertained the idea of having a Collegium-like system for determining the roster. It heard a petition filed by Former Union Law Minister Shanti Bhushan requesting the Court to require the Chief Justice to consult with his/her senior most colleagues when determining the roster. Ultimately however, a Bench comprising Justices A.K. Sikri and Ashok Bhushan rejected the plea. However, it did re-affirm that the Chief Justice is only ‘the first among equals’.
Currently, the Court continues to use the subject-wise roster system. The Chief Justice of India selects the composition of benches and which types of cases they will hear. The current roster can be found here.
Currently, the Collegium has the ultimate authority to appoint judges to the Supreme Court. The Collegium comprises the Chief Justice of India and their four senior most colleagues. Before retiring, the Chief Justice selects their successor, which by convention is the senior most sitting judge
Swearing-in ceremony of former Chief Justice Dipak Misra
When a vacancy arises, the Collegium convenes and recommends a name to the Union Government. Usually, this recommended person is a High Court judge. Nevertheless, lawyers with ten years of High Court experience or even distinguished jurists are eligible to be appointed. The Union reviews the recommendation and then either affirms it or asks the Collegium to reconsider. In instances of the latter, the Collegium will reconsider the name, but ultimately has the power to reiterate it. Once the Collegium reiterates a recommendation, the Union must make the appointment. The entire process is outlined in the Memorandum of Procedure.
The Collegium also has authority over High Court appointments. High Court appointments are governed by essentially the same procedure.
These procedures are intended to restrict the Union's influence over appointments. Nevertheless, the Union can exert control over individual appointments. Consider, for example, the 2019 controversy surrounding Justice Akil Kureshi’s appointment. The controversy arose when the Union simply chose not to respond to a Collegium recommendation – neither accepting it nor asking for a reconsideration. This led the Gujarat High Court Advocates Association to file a petition in the Supreme Court, seeking Justice Kureshi’s immediate appointment. Ultimately, the Court and Union resolved the issue on the administrative side, avoiding disputing the appointment in open court. The Collegium agreed to the Union's request to recommend Justice Kureshi as Chief Justice of the Tripura High Court, instead of the Madhya Pradesh High Court.
The Union Government originally had the final say over judicial appointments. The drafters of the Constitution had vested the President with the power to make appointments. Under Article 124, the President has control over appointments and must only consult the Chief Justice of India (and any other judges the President may deem necessary). Prior to the introduction of the Collegium, Article 124 was interpreted to mean that the President could act against the advice of the Chief Justice.
In the years leading up to Emergency, the Court became concerned that the Union was eroding the Court's independence by making arbitrary appointments and transfers. Famously, in 1973, the Union selected Justice A.N. Ray as the Chief Justice of India, superseding three of his more senior colleagues. This was widely seen as Indira Gandhi rewarding him for dissenting in the Kesavananda Bharati case.
Following Emergency, the Court gradually wrested control from the Union over judicial appointments. In what are known as the Three Judges Cases, the Court established that primacy over appointments rested with the Chief Justice of India and their senior most colleagues.
In the First Judges Case (1981), the Court placed an onus on the President to substantially consult the Chief Justice when making appointments. Then in the Second Judges Case (1993), the Court went further and established that the Chief Justice has primacy over appointments. It read that the word ‘consultation’ in Article 124 means ‘concurrence’. Finally, in the Third Judges Case (1998), the Court clarified that the Chief Justice must consult with the four other senior most Supreme Court judges when making Supreme Court appointments.
The Union, through both its executive and legislative arms, has repeatedly challenged the Collegium system. For example, in 2014 Parliament passed the National Judicial Appointments Commission (NJAC) Bill. The NJAC system was intended to replace the Collegium system. It would have comprised not only judges, but also the Union Law Minister and two eminent persons nominated by a selection committee. However, it never came into being. In 2015, the Supreme Court struck down the Act as unconstitutional, observing that it would infringe upon the independence of the judiciary.
For now, the Collegium system remains in place. While the Court itself in its NJAC judgment conceded that the system requires improvements, it appears unlikely that it will undergo major overhauls in the near future.
A postponement of proceedings for a period of time.
Amicus Curiae or "Friend of the Court" refers to a person that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question
Ab Initio is a Latin phrase that translates to "from the start".
An appellate Court is said to have affirmed a decision when it agrees with the verdict of the lower court.
A legal document in which the individual swears under oath before a notary or someone authorized to take oaths that the statements made in the document are true.
A legal proceeding by which a case is brought before a higher court for review of the decision of a lower court.
This is a nonbinding interpretation of law given by the Court on a question of law or fact that is of public importance and referred to the Court by the President of India.
The latin term for "in good faith", it is used to signify the honesty and absence of any fraudulent element in claims made by a party.
When one or more judges agree with the majority judgment but wish to write separate reasons for why they agree, they are said to write a concurring judgment.
A bench of the Supreme Court consisting of five or more judges. The term originates from Article 145(3) of the Constitution which states that "any case involving a substantial question of law as to the interpretation of [the] Constitution" must be decided by a bench of a minimum of five judges.
A writ of superior court to call up the records of an inferior court or a body acting in a quasi-judicial capacity.
Ex Parte proccedings refer to hearings or orders granted on the request of and for the benefit of one party only in the absence of the other party.
A temporary order of the Court that remains in force until the next hearing, the performance of an act by one or both parties, or a final order of the Court.
An act is said to be intra vires when it is performed by a competent authroity within the scope of its power.
A non-party to a case that is allowed to be brought on record by the Court at its discretion without the permission of the parties to the litigation.
The act of bringing a third party to a litigation who may be liabke to the petitioner or is likely to be directly effected by the outcome of the case at hand.
Latin for "place to stand". It menas the right of a party to bring forth an action, to be heard by the Court, or the right to address the Court.
All parties to a case who are not the petitioner are referred to as respondents. It is important to note that Respondents are not necessarily opposed to the Petitioner(s). For instance, in Subramanian Swamy v. Union of India, various free speech organisations were listed as Respondents even though they supported the Petitioner in the case.
The act of a Judge to remove or excuse himself from hearing a particular case owing to conflict of interest.
An issue finally decided on its merits by a court having competent jurisdiction can not be subject to litigation again between the same parties on the same facts.
The revocation of a statute by the enactment of a a new law by the legislature.
A Review Petition is a means for aggrieved parties to have the same Bench revisit their judgment in a case. There are three grounds for review: (i) obvious error, (ii) violation of natural justice, (iii) miscarriage of justice (e.g. not considering pertinent facts).
A Special Leave Petition is an extraordinary power granted to the Supreme Court of India under Article 136 of the Constitution. This Article grants the Court the power to hear an appeal against any order passed by any court in any part of India. The vast majority of the cases before the Supreme Court are Special Leave Petitions.
Suo motu means "on its on motion" in Latin. When the Court takes up a Suo Motu Petition, it takes the unusual step of taking up a case, even though no party has filed a relevant petition.
An act is said to be ultra vires when it is performed by a competent authroity beyond the scope of its power and contrary to the Constitution.