CASE LAWS

Clause (1) of 214 provides for the establishment of a Supreme Court of India. The court
consists of Chief Justice and other judges as prescribed by the Parliament. The Chief Justice
of the Court is designated as the Chief Justice of India. Parliament has now increased the
number of other Judges to 30.

Subhash Sharma v. Union of India, AIR 1991 SC 631

The Court has held that the number of judges should be commensurate to the amount of
work, otherwise the judiciary cannot perform its constitutional obligation. There is no
minimum number of judges prescribed, but clause (3) of article 145 lays down that no case
involving a substantial question of law as to the interpretation of the Constitution or a
reference under article 143 shall be decided by less than five judges.

Union of India v. S.P. Anand, AIR 1998 SC 2615

The Supreme Court sits at Delhi under article 130. The Supreme Court stated that it is an
enabling provision and does not cast a mandatory obligation on the Chief Justice of India to
appoint any place other than Delhi as the seat of the Supreme Court. Article 124(2) provides
that every Judge of the Supreme Court shall be appointed by the President under his hand and
seal after consultation with such of the Judges of the Supreme Court and of High Courts in
the States as the President may deem necessary.

Union of India, Appellant v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328

It was held that the word 'consultation' means full and effective consultation. For a full and
effective consultation it is necessary that the three constitutional functionaries must have their
consideration on 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.

S.P. Gupta v. President of India, AIR 1982 SC 149 (Popularly known as Judges, Transfer
case).

The Supreme Court by majority expressed the view that all the constitutional functionaries
involved in appointment are on the same pedestal so far as consultation is concerned.
Consultation cannot be equated with concurrence. The Supreme Court has also held once that
the independence of the judiciary is a basic feature of the Constitution and any attempt to
curtail it directly or indirectly even by an amendment of the Constiution is invalid.

Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC (Judges

Transfer case II).

The Court has laid down detailed guidelines governing appointment and transfer of judges
and held that great significance should be attached to the view of the Chief Justice of India
formed after taking into account the views of two senior-most judges of the Supreme Court. It
thus has reduced to the minimum individual discretion conferred upon the Prime Minister and
the Chief Justice of India so as to ensure that neither political bias nor personal favouritism
nor animosity should play and part in the appointment of Judges of the Supreme Court and
High Courts.

The Constitution expressly requires him to consult such of the Judges of the Supreme Court,
and of the High Courts as he may deem necessary. It also requires him to always consult the
Chief Justice of India in the appointment of a judge other than the Chief Justice of India.

What is the procedure to remove the judges?

Removal of Judges: Impeachment under Article 124(4) and (5)-

Clauses (4) and (5) of article 124 deal with the procedure for removal of Supreme Court
Judges. The same procedure applies to High Court Judges. Clause (4) of article 124 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 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. The
constitutional provision does not prescribe how this investigation is to be carried on. It leaves
it to Parliament to settle and lay down by law the detailed procedure according to which the
address may be presented and the charge of misconduct or incapacity against the Judge
investigated and proved. In America, the Judges of Supreme Court hold office for life. They
can, however, be removed by impeachment in cases of treason, bribery on other high crimes
and misdemeanour.

K. Veeraswami v. Union of India, (1991) 3 SCC 855

A five Judges Bench of the Supreme Court held that a Judge of the Supreme Court and High
Court can be prosecuted and convicted for criminal misconduct. The word 'proved' in this
provision indicates that the address can be presented by Parliament only after the alleged
charge of misbehaviour or incapacity against the Judge has been investigated, substantiated
and established by an impartial tribunal. The constitutional provision does not prescribe how
this investigation is to be carried on.

In accordance with the above provision, Parliament has enacted the necessary law for the
purpose. The Judges (Inquiry) Act, 1968 now regulate the procedure for investigation and
proof of misbehaviour or incapacity of a Supreme Court judge for presenting an address by
the Houses of Parliament to the President for his removal.

Clause (6) requires every person appointed to be a Judge of the Supreme Court before he
enters upon his office, to make and subscribe before the President, or some person appointed
in that behalf by him an oath or affirmation according to Third Schedule.

Clause (7) deprives a person who has held the office of a Judge of the Supreme Court of the
liberty to plead or act in any court or before any authority within the territory of India.

Article 129. Supreme Court to be Court of Record

What is court of record?

The Supreme Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself. Wharton Law Lexicon.- The following
definition is given:

"Courts are either of record when their acts and judicial proceedings are enrolled for a
perpetual memorial and testimony and they have power to fine and imprison, or not of record
being courts of inferior dignity, and in a less proper sense the king's courts - and these are
not entrusted by law with any power to fine or imprison the subject of the realm, unless by the
express provision of some Act of Parliament Their proceedings are not enrolled or
recorded.”

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1

Supreme Court has asserted that in the absence of any express provision in the Constitution
the Apex Court being a court of record has jurisdiction in every matter and if there be any
doubts, the court has power to determine its jurisdiction.
Om Prakash Jaiswal v. D.K. Mittal, AIR 2000 SC 1136

It was held that availability of an independent judiciary and an atmosphere wherein Judges
may act independently and fearlessly in the source of existence of civilization in society the
writ issued by the court must be obeyed. It is the binding efficacy attaching with the
commands of the court and the respect for the orders of the court which deter the aggrieved
persons from taking the law in their own hands because they are assured of an efficacious
civilized method of settlement of dispute.