The Supreme Court and the High Courts

1. Composition and appointment

Article 124 establishes the Supreme Court, with the Chief Justice of India and other judges whose number Parliament fixes (now thirty-three besides the Chief Justice). A judge is appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President deems necessary, and the Chief Justice shall always be consulted for an appointment other than his own (Article 124(2) proviso).

Qualifications (Article 124(3)): a citizen who has been a High Court judge for five years, or an advocate of a High Court for ten years, or is, in the opinion of the President, a distinguished jurist. A judge holds office until sixty-five.

2. The Judges cases: what “consultation” means

• First Judges case. In S.P. Gupta v. Union of India, 1981 INSC 209, 1981 Supp SCC 87, the Court held that consultation does not mean concurrence. The executive had primacy, and the Chief Justice's opinion could be overridden for cogent reasons. The case is also the foundation of PIL standing.
• Second Judges case. In Supreme Court Advocates-on-Record Association v. Union of India, 1993 INSC 318, (1993) 4 SCC 441, a nine-judge Bench overruled S.P. Gupta by 7:2. In appointments and transfers the opinion of the Chief Justice, formed after consulting the two senior-most judges, has primacy. No appointment can be made unless it conforms to that opinion. This created the collegium. Seniority was to be the norm for appointing the Chief Justice.
• Third Judges case. In Special Reference No. 1 of 1998, 1998 INSC 402, (1998) 7 SCC 739, the Court advised on a Presidential reference that the Chief Justice must consult a collegium of the four senior-most judges for Supreme Court appointments (two for High Court transfers). A recommendation made without that consultation does not bind the Government.
• The NJAC case. The Ninety-ninth Amendment, 2014 inserted Article 124A, creating a National Judicial Appointments Commission of the Chief Justice, two senior judges, the Law Minister and two eminent persons, any two of whom could veto a name. On 16 October 2015, in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, the Court struck down the Amendment and the NJAC Act by 4:1 (Chelameswar J. dissenting) as violating the independence of the judiciary, a part of the basic structure. The collegium system revived. By a further order in Supreme Court Advocates-on-Record Association v. Union of India, 2015 INSC 285, the Court directed the Government to finalise a revised Memorandum of Procedure in consultation with the Chief Justice, to make the collegium more transparent.

Memorandum of Procedure. The working rules of appointment are set out in the Memorandum of Procedure of 1999, prepared after the Third Judges case. The collegium recommends; the Government may return a name once for reconsideration; if the collegium reiterates it, the appointment must be made.

3. Removal and independence

A judge can be removed only by an order of the President after an address by each House, supported by a majority of the total membership and two-thirds of members present and voting, in the same session, on the ground of proved misbehaviour or incapacity (Article 124(4)). The procedure is in the Judges (Inquiry) Act, 1968. No judge has yet been removed; the motion against V. Ramaswami J. failed in 1993.

Other safeguards of independence: salaries charged on the Consolidated Fund and not reducible to a judge's disadvantage after appointment except in a financial emergency (Article 125, Article 360(4)); no practice after retirement before any court in India (Article 124(7)); no discussion of a judge's conduct in Parliament except on a removal motion (Article 121); the power to punish for contempt (Article 129); and separation of the judiciary from the executive (Article 50).

4. Jurisdiction of the Supreme Court

• Original (Article 131). Exclusive jurisdiction in disputes between the Government of India and one or more States; between the Government of India and a State on one side and other States on the other; or between two or more States — where the dispute involves a question of law or fact on which the existence or extent of a legal right depends. Private parties cannot sue under it. Excluded: disputes under pre-constitution treaties and agreements (proviso), inter-State water disputes (Article 262), and matters referred to the Finance Commission (Article 280).
• Writ (Article 32). Enforcement of fundamental rights, itself a fundamental right. Concurrent with, but narrower than, Article 226.
• Appellate (Articles 132 to 136). Constitutional appeals on a certificate that a substantial question of interpretation of the Constitution is involved (132); civil appeals on a certificate of a substantial question of law of general importance (133); criminal appeals, as of right where the High Court has reversed an acquittal and sentenced to death or withdrawn a case and sentenced to death, and otherwise on certificate (134); certificates under Article 134A. Article 136, special leave, is the widest: a discretionary power to hear an appeal from any judgment of any court or tribunal in India, except military tribunals.
• Advisory (Article 143). Under 143(1) the President may refer any question of law or fact of public importance, and the Court may give its opinion. Under 143(2), disputes on pre-constitution treaties, it shall. The opinion is not a judgment, but the Court treats it with great weight. The Keshav Singh and Third Judges references are examples, and in In re Assent, Withholding or Reservation of Bills by the Governor and the President, 2025 INSC 1333, the Court advised that fixed judicial timelines and “deemed assent” cannot be imposed on the Governor or President.
• Article 141. The law declared by the Supreme Court binds all courts in India (but not the Supreme Court itself, which may overrule its earlier decisions).
• Article 142. Power to pass any decree or order necessary for doing complete justice in any cause before it.
• Article 129. A court of record with power to punish for contempt of itself.
• Also: review of its own judgments (Article 137) and transfer of cases between High Courts (Article 139A).

5. High Courts in brief

Every State has a High Court (Article 214), though Parliament may establish a common High Court for two or more States (Article 231). Judges are appointed by the President after consulting the Chief Justice of India, the Governor and the Chief Justice of the High Court (Article 217), and retire at sixty-two. Qualification: ten years in judicial office or as an advocate of a High Court. The High Court is a court of record (Article 215), has writ jurisdiction wider than Article 32 (Article 226), superintendence over all courts and tribunals in its territory (Article 227), and control over the subordinate judiciary (Article 235).

6. Transfer of High Court judges (Article 222)

The President may transfer a judge from one High Court to another after consultation with the Chief Justice of India. In Union of India v. Sankalchand Himatlal Sheth, 1977 INSC 177, (1977) 4 SCC 193, a transfer made during the Emergency was challenged. The majority held that the judge's consent is not required, but consultation must be full and effective, on all relevant facts, and a transfer may be made only in the public interest, never as punishment. S.P. Gupta (1981) followed this. Under the Second and Third Judges cases, transfers now proceed on the recommendation of the Chief Justice and collegium, and judicial review is limited to whether that consultation took place.

7. Problem: the President appoints judges without consulting the CJI

The President appoints three persons as judges of the Supreme Court without consulting the Chief Justice of India. Are the appointments valid?

• Issue. Whether an appointment under Article 124(2) without consultation with the Chief Justice is valid.
• Law. The proviso to Article 124(2) is mandatory: the Chief Justice “shall always be consulted”. Under the Second Judges case the Chief Justice's opinion, formed with the collegium, has primacy, and under the Third Judges case the proposal must originate from the Chief Justice after consulting the four senior-most judges. The NJAC judgment (2015) restored this system. “President” here means the Union executive acting under Article 74.
• Review. In Mahesh Chandra Gupta v. Union of India, 2009 INSC 867, (2009) 8 SCC 273, the Court held that eligibility and the fact of effective consultation are justiciable, though suitability is not.
• Conclusion. The appointments are unconstitutional and void, as the mandatory consultation is absent. They can be challenged by a writ of quo warranto under Article 32 or 226.

How this is examined

Expect an essay on the jurisdiction of the Supreme Court (all heads, with Articles), a short note on original jurisdiction under Article 131, a short note on transfer of judges, and the appointment problem above. For appointment as an essay, trace the four cases in order and say what each did to the word “consultation”: consultation is not concurrence (1981), primacy of the Chief Justice (1993), the collegium of five (1998), and the collegium restored over the NJAC (2015).