Supreme Court and Judicial Review

🟢 Lite — Quick Review (1h–1d)

Rapid summary for last-minute revision before your exam.

Supreme Court — Key Facts for BPSC

• Strength: 34 judges (including Chief Justice of India)
• CJI appointment: President appoints (Article 124)
• Qualifications: Must be a judge of HC for 5 years OR distinguished jurist (practicing lawyer for 10 years)
• Term: Until 65 years of age (cannot be removed except by impeachment)
• Appeals: Original jurisdiction (between states), appellate (constitutional, civil, criminal)
• Basic Structure Doctrine: Kesavananda Bharati (1973) — Parliament cannot alter basic structure
• Collegium system: CJI + 4 senior judges recommend appointments

⚡ Exam tip: BPSC asks about Basic Structure doctrine, Basic Structure components, and CJI appointment procedure — know Kesavananda Bharati (1973) and Three Judges Case (1998).

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🟡 Standard — Regular Study (2d–2mo)

Standard content for students with a few days to months.

Supreme Court: Structure and Composition

Appointment (Article 124)

Chief Justice of India (CJI):

• Appointed by President (after consultation with such judges as President deems necessary)
• First CJI under the Constitution: Justice Hiralal Kania (1950)

Supreme Court Judges:

• Appointed by President after consultation with CJI
• No direct appointment by President at discretion — must consult
• Minimum qualifications:
  • Must have been a High Court judge for 5 years; OR
  • Must have been an advocate of HC for 10 years; OR
  • Must be a distinguished jurist (in the opinion of President)

Number of Judges:

• Original (1950): 8 (1 CJI + 7 judges)
• Now (2024): 34 (1 CJI + 33 judges)
• Increased by 15th Amendment (1962) and subsequent amendments

Tenure and Removal

Tenure: Holds office until 65 years of age

• Cannot be removed except by impeachment
• Salary: ₹2.50 lakh/month (CJI), ₹2.25 lakh/month (other judges) — fixed by Parliament (not variable)

Impeachment (Article 124(4)):

• Motion by 1/3 members of the House that originated it
• Investigation by a committee of 3 (2 senior judges + 1 distinguished person)
• Passed by 2/3 majority of total membership of both Houses
• Never used in Indian history — no Supreme Court judge has been impeached

Important: Once appointed, a judge can be removed only by impeachment — President cannot remove even on CJI’s recommendation.

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Jurisdiction of Supreme Court

1. Original Jurisdiction (Article 131)

Exclusive original jurisdiction — cases directly heard by SC (not via lower courts):

• Disputes between:
  • Government of India and one or more states
  • Two or more states
  • Union and a state on one side and other states on another
• Not: Individual citizens vs. State (goes to High Court)

Example: Karnataka vs. Maharashtra (water disputes) — heard in SC under Article 131

2. Appellate Jurisdiction

a) Constitutional Cases (Article 132):

• High Court certificate (under Article 134A) — “substantial question of law”
• Must involve interpretation of Constitution
• Appeals to SC: If High Court certifies the case involves a substantial constitutional question

b) Civil Appeals (Article 133):

• High Court certificate — substantial question of general importance
• Must involve question of law (not fact)
• Criminal Appeals (Article 134):
• High Court certificate (or if HC reverses acquittal and awards death sentence — SC automatic)

c) Special Leave Petition (Article 136):

• SC can grant special leave to appeal from any court (including High Courts, tribunals)
• Not a right — Supreme Court’s discretion
• Exceptions: Armed forces tribunal decisions (limited appeal rights)

3. Advisory Jurisdiction (Article 143)

• President can seek advisory opinion from Supreme Court
• On questions of public importance or interpretation of Constitution
• Not binding — President is not obligated to accept the opinion
• Example: Kesavananda Bharati case started as advisory (but SC refused to give opinion on that question)
• Example: In re: Presidential Election (1975) — SC gave advisory opinion on election of President

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Judicial Review and Basic Structure Doctrine

What is Judicial Review?

Judicial Review = Power of courts to examine whether laws/ctions are constitutional

Basis:

• Article 13: Any law inconsistent with Part III (FR) is void
• Article 32: Right to move SC for enforcement of FR
• Article 136: SC can grant special leave to challenge any court decision

Why important?

• Ensures balance of power — Legislature cannot make arbitrary laws
• Protects fundamental rights from parliamentary majorities
• Prevents democratic tyranny — majority cannot crush minorities

The Basic Structure Doctrine

Kesavananda Bharati v. State of Kerala (1973) — Landmark Case

Facts: A 13-judge bench (largest in Indian history) was convened to decide if Parliament can amend “fundamental rights” part of Constitution.

Held:

“The basic features of the Constitution cannot be destroyed by any amendment under Article 368”

What is “Basic Structure”? The Court identified (not exhaustive) these as basic features:

• Supremacy of Constitution
• Republican and democratic form of government
• Secularism and freedom of conscience
• Federal structure
• Separation of powers (legislative, executive, judicial)
• Individual freedom

Significance:

• Overruled earlier decisions in Golaknath (1967) — which said FR cannot be amended
• Overruled Shankari Prasad (1951) and Sajjan Singh (1965) — which upheld amending FR
• Established: Parliament’s power under Article 368 is limited — cannot destroy basic structure

Later cases:

• Minerva Mills v. Union of India (1980): Confirmed basic structure — 42nd Amendment’s provisions were partly struck down
• LIC of India v. Escorts (1986): SC can examine constitutional amendments for basic structure violations

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🔴 Extended — Deep Study (3mo+)

Comprehensive coverage for students on a longer study timeline.

Evolution of Basic Structure: Case Law

Early Cases

Shankari Prasad Singh Deo v. Union of India (1951):

• 7-judge bench upheld 1st Amendment (Art. 31A added) — said “amending power includes amending fundamental rights”
• Parliament can curtail FR through amendment

Sajjan Singh v. State of Rajasthan (1965):

• 5-judge bench upheld 17th Amendment (added 9th Schedule) — same view
• Criticism: More of a “formal” review than substantive

The Turning Point: Golak Nath (1967)

Golak Nath v. State of Punjab (1967):

• 11-judge bench — overturning earlier decisions
• Held: Parliament cannot amend any provision of Part III (Fundamental Rights)
• Reasoning: FR are “transcendental” — above parliamentary power
• Result: Parliament could not touch FR — but also couldn’t implement reforms

Counter-criticism: If Parliament cannot amend FR, then Parliament cannot reduce reservation (beneficial for SC/ST). This created tension.

Kesavananda Bharati: Resolution

Kesavananda Bharati v. State of Kerala (1973):

• 13-judge bench — largest ever convened
• Overruled Golak Nath: Parliament can amend FR
• BUT: Parliament cannot destroy “basic structure” of Constitution

What qualifies as “Basic Structure”? The Court did not give an exhaustive list but suggested:

1. Supremacy of Constitution
2. Republican and democratic system
3. Secularism
4. Federalism
5. Separation of powers
6. Individual freedoms (human dignity)

Post-1973: Courts have added to this list in later cases:

• Right to privacy (2017)
• Chartered accountant independence (2019)
• Free and fair elections (2019)

Later Cases: Minerva Mills and Beyond

Minerva Mills v. Union of India (1980):

• 55th Amendment (1974) — added Article 31C: “DPSP laws cannot be challenged”
• Court struck down a portion of 42nd Amendment (which gave unlimited amending power)
• Key: “Limited amending power is a basic feature”

Indira Gandhi v. Raj Narain (1975):

• Election of MP is not a basic feature (per se) — but free elections are
• 42nd Amendment (1976): Ruled invalid for violating basic structure

B. R. Rao v. State of Bihar (2018):

• 99th Amendment (providing for NJAC — National Judicial Appointments Commission) struck down
• Reason: Collegium system (for judicial appointments) is a basic feature of “judicial independence”

The Collegium System

Judges Case (Second Judges Case, 1993):

• 9-judge bench held:
  • CJI appointment must be on the basis of seniority BUT senior-most must be “most suitable”
  • CJI’s opinion on appointment must be given “primary consideration”
  • Collegium: CJI + 4 senior judges should be consulted

Third Judges Case (1998):

• 9-judge bench elaborated:
  • Collegium = CJI + 4 senior-most judges of SC
  • Consultation is binding — President cannot return recommendations
  • If President has doubts, can refer back once
  • After second referral, must appoint

99th Amendment / NJAC (2014):

• Constitution (99th Amendment) Act, 2014: Set up NJAC (National Judicial Appointments Commission)
• Replaced collegium system
• SC struck down (2015) in Supreme Court Adv. on AoC v. Union of India
• Reason: “Collegium system is part of basic structure — judicial independence is a basic feature”

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Writ Jurisdiction

Five Writs (Article 32)

Habeas Corpus: Against illegal detention — “produce the body”

• Case: ADM Jabalpur v. Shankar Sharan (1976) — Supreme Court upheld preventive detention during Emergency

Mandamus: Compel government to perform duty

• Can issue: Against lower courts, tribunals, government officials
• Cannot issue: Against President, Governor, legislators

Prohibition: Prohibit lower court from proceeding (before judgment)

• Available against judicial bodies (not executive)

Certiorari: Transfer case from lower court to higher (after proceedings started)

• Used when lower court lacks jurisdiction or material error

Quo Warranto: Question authority — “by what warrant?”

• Used against public offices occupied illegally

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Important Articles for BPSC

Article	Content
Art. 124	SC establishment and appointment
Art. 125	SC judges’ salary
Art. 126	CJI acting appointment
Art. 127	Ad-hoc judges
Art. 128	Retired judges
Art. 129	SC as court of record
Art. 130	SC at Delhi
Art. 131	Original jurisdiction
Art. 132	Appellate jurisdiction (constitutional)
Art. 133	Civil appeals
Art. 134	Criminal appeals
Art. 136	Special leave petition
Art. 137	Review jurisdiction
Art. 141	SC decisions binding on all courts
Art. 143	Advisory jurisdiction

Practice Questions (BPSC Pattern)

1. The Basic Structure Doctrine was established in:

   • (a) Golak Nath case
   • (b) Kesavananda Bharati case
   • (c) Minerva Mills case
   • (d) Maneka Gandhi case

2. How many judges presided over Kesavananda Bharati case?

   • (a) 9
   • (b) 11
   • (c) 13
   • (d) 15

3. The Collegium system for appointment of judges was established in:

   • (a) First Judges case
   • (b) Second Judges case
   • (c) Third Judges case
   • (d) All of the above

4. Supreme Court can issue writs under:

   • (a) Article 32 only
   • (b) Article 226 only
   • (c) Both Articles 32 and 226
   • (d) Only Article 136

Answers: 1(b), 2(c), 3(d), 4(a)

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