There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, not more than seven other Judges (Art.124(1)). Parliament has repeatedly increased the number, and the sanctioned strength now stands at the Chief Justice and thirty seven other Judges, that is thirty eight in all.
Legal Framework
| Provision | Subject | Key Rule |
|---|---|---|
| Art.124(1) | Constitution of the Court | Chief Justice of India and such number of other Judges as Parliament prescribes |
| Art.124(2) | Appointment | By the President by warrant under his hand and seal, after consultation with such Judges of the Supreme Court and the High Courts as he deems necessary; the Chief Justice shall always be consulted for the appointment of a Judge other than the Chief Justice |
| Art.124(3) | Qualifications | Citizen of India, and either five years as a High Court Judge, or ten years as a High Court advocate, or a distinguished jurist in the President's opinion |
| Art.124(4) | Removal | By an order of the President after an address by each House supported by the prescribed majority, on the ground of proved misbehaviour or incapacity |
| Art.124(5) | Procedure for removal | Parliament may regulate the procedure by law, as it has by the Judges (Inquiry) Act, 1968 |
| Art.124(7) | Bar on practice | A retired Judge of the Supreme Court may not plead or act in any court or before any authority in India |
| Art.125 | Salaries | Charged on the Consolidated Fund; cannot be varied to a Judge's disadvantage during his term |
| Art.126 | Acting Chief Justice | Appointed by the President when the office is vacant or the Chief Justice is unable to perform his duties |
| Art.127 | Ad hoc Judges | A High Court Judge may sit in the Supreme Court with the President's consent, at the Chief Justice's request |
| Art.128 | Retired Judges | May be requested to sit and act as a Judge of the Supreme Court |
| Art.146 | Officers and expenses | Appointments to the Court's staff by the Chief Justice; expenses charged on the Consolidated Fund |
Retirement age: A Judge of the Supreme Court holds office until he attains the age of sixty five years (Art.124(2)). For a High Court Judge the age is sixty two (Art.217(1)).
Section 2 of the Supreme Court (Number of Judges) Act, 1956 fixes the number of Judges other than the Chief Justice. It was raised from 30 to 33 by the Amendment Act of 2019, giving a total of 34. It was raised again from 33 to 37 by the Supreme Court (Number of Judges) Amendment Act, 2026, giving a sanctioned strength of 38 including the Chief Justice, with effect from 16 May 2026. The increase was first brought in by ordinance and the Act replaced it, being passed by the House of the People on 3 August 2026 and by the Council of States on 5 August 2026, and receiving the President's assent thereafter.
Two points of examination interest. First, the working strength is usually below the sanctioned strength, so a question asking for the sanctioned figure wants 38. Second, the 2026 Act was passed as a Money Bill, which drew criticism precisely on the ground that the composition of the Supreme Court answers none of the matters in Art.110(1); the issue connects directly to Powers and Functions of Parliament and to the reference pending after Rojer Mathew v South Indian Bank 2020.
The Evolution of "Consultation"
Article 124(2) requires the President to appoint after consultation. The whole modern law of judicial appointments turns on what that word means, and the answer has changed four times.
| Stage | Case | Position |
|---|---|---|
| First Judges case, 1981 | S P Gupta v Union of India | "Consultation" does not mean concurrence. The Chief Justice's opinion has no primacy and the executive's view prevails |
| Second Judges case, 1993 | Supreme Court Advocates on Record Association v Union of India | Overruled the first. "Consultation" means concurrence. The Chief Justice's opinion, formed in consultation with his senior colleagues, has primacy. The collegium is born |
| Third Judges case, 1998 | Special Reference No. 1 of 1998 | Clarified the composition of the collegium: the Chief Justice plus the four senior-most Judges for Supreme Court appointments, and the Chief Justice plus the two senior-most for High Court appointments and transfers |
| Fourth Judges case, 2015 | Supreme Court Advocates on Record Association v Union of India | The 99th Amendment and the NJAC Act were struck down as violating the basic structure, and the collegium system was revived |
Facts: A group of petitions raised questions about the appointment and transfer of Judges, the practice of appointing additional Judges for short terms, and the meaning of consultation in Arts.124(2) and 217(1). The case is also the foundation of relaxed standing in public interest litigation.
Issue: Whether "consultation" with the Chief Justice means concurrence, and whose view prevails in the event of disagreement.
Held: Consultation does not mean concurrence. The consultation must be full and effective, and the constitutional functionaries must have identical material before them, but the ultimate power of appointment rests with the executive. The Chief Justice's opinion has no primacy over that of the other consultees.
Relevance: The starting point of the story, and now overruled on this issue. Cite it to show the original executive-primacy position and the distance the law has since travelled.
Facts: The correctness of S P Gupta was reconsidered by a Bench of nine Judges, against a background of perceived executive interference in appointments and transfers.
Issue: What is the meaning of consultation, and who has primacy in the appointment of Judges?
Held: S P Gupta was overruled on this point. In the matter of appointments the opinion of the Chief Justice of India has primacy, and consultation is to be understood as requiring concurrence. The Chief Justice is not to act on his individual opinion but is to form it in consultation with his senior colleagues, which is the origin of the collegium. The executive may raise objections but cannot appoint contrary to the collegium's recommendation. Independence of the judiciary requires that the executive not have the last word.
Relevance: The central case in this area. Any answer on appointments must identify this as the decision that created the collegium and reversed executive primacy.
Facts: The President made a reference under Art.143 seeking clarification of the Second Judges case, in particular whether the Chief Justice's sole opinion constituted "consultation" and how the collegium was to be composed.
Issue: What is the composition of the collegium, and what is the effect of an opinion formed without it?
Held: The Chief Justice's opinion must be formed in consultation with a collegium of the four senior-most Judges of the Supreme Court for appointments to that Court, and with the two senior-most for appointments to and transfers from the High Courts. An opinion formed by the Chief Justice alone, without such consultation, is not binding on the Government. Reasons must be recorded, and the views of the senior-most Judge from the High Court concerned are to be taken into account.
Relevance: Supplies the operational detail of the collegium. Cite it for the numbers, which are frequently asked.
Facts: The Constitution (Ninety-ninth Amendment) Act, 2014 inserted Art.124A and established a National Judicial Appointments Commission consisting of the Chief Justice of India, the two next senior-most Judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons chosen by a committee of the Prime Minister, the Chief Justice and the Leader of the Opposition. The National Judicial Appointments Commission Act, 2014 accompanied it. Both were challenged.
Issue: Whether the 99th Amendment and the accompanying Act violated the basic structure by impairing the independence of the judiciary and the primacy of the judiciary in appointments.
Held: By a majority of four to one, the amendment and the Act were struck down. The presence of the Law Minister and of two lay eminent persons, coupled with a veto exercisable by any two members, gave the executive a decisive voice and destroyed the primacy of the judiciary in appointments. Primacy of the judiciary in the matter of appointments was held to be part of the independence of the judiciary, which is a basic feature. The collegium system revived. Chelameswar J dissented, holding the collegium opaque and the amendment valid.
Relevance: The current law. Note both the outcome and the criticism, since a good answer acknowledges that the Court also directed improvements to the collegium's transparency.
Illustrations
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Chief Justice must always be consulted: A Judge of the Supreme Court is appointed without any consultation with the Chief Justice. The appointment is invalid, the proviso to Art.124(2) making consultation with him mandatory for every appointment other than that of the Chief Justice himself.
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Opinion of the Chief Justice alone: The Chief Justice recommends a name without consulting the four senior-most Judges. Applying Special Reference No. 1 of 1998, the recommendation is not binding on the Government.
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Distinguished jurist: A professor of law with no judicial or Bar experience is appointed. This is competent under Art.124(3)(c), which permits appointment of a distinguished jurist in the President's opinion, though the clause has not in practice been used.
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Ten years at the Bar: An advocate with nine years practice in a High Court is recommended. He is not qualified, Art.124(3)(b) requiring ten years.
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Salary protection: Parliament reduces the salaries of Supreme Court Judges during their tenure. This offends Art.125(2), which forbids variation to a Judge's disadvantage during his term.
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Retired Judge sitting again: With the President's previous consent, the Chief Justice requests a retired Judge of the Supreme Court to sit on a Bench. This is permissible under Art.128, and while so sitting he has all the jurisdiction and privileges of a Judge.
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Bar on practice after retirement: A retired Supreme Court Judge seeks to appear before a High Court. Art.124(7) bars him from pleading or acting in any court or before any authority in India.
Recall Check
- What is the sanctioned strength of the Supreme Court, and under which provision is it fixed?
- State the three alternative qualifications for appointment under Art.124(3).
- Name the four Judges cases and the position each established on the meaning of consultation.
Key Cases
S P Gupta v Union of India (1982) SP Gupta v Union of India 1982
Issue: Whether consultation with the Chief Justice under Arts.124(2) and 217(1) means concurrence.
Rule: Consultation must be full and effective but does not mean concurrence; the ultimate power of appointment rests with the executive.
Held: The Chief Justice's opinion has no primacy. Now overruled on this point.
Supreme Court Advocates on Record Association v Union of India (1993) SC Advocates on Record Association v Union of India 1993
Issue: The meaning of consultation and the locus of primacy in judicial appointments.
Rule: Consultation means concurrence, and the Chief Justice's opinion, formed with his senior colleagues, has primacy.
Held: S P Gupta overruled; the collegium system established.
Special Reference No. 1 of 1998 (Third Judges case) Special Reference No 1 of 1998
Issue: The composition of the collegium and the effect of an opinion formed without it.
Rule: The Chief Justice plus the four senior-most Judges for Supreme Court appointments, and plus the two senior-most for High Court appointments and transfers.
Held: An opinion of the Chief Justice formed without the collegium is not binding on the Government.
Supreme Court Advocates on Record Association v Union of India (2015) SC Advocates on Record Association v Union of India 2015
Issue: Validity of the 99th Amendment and the National Judicial Appointments Commission.
Rule: Primacy of the judiciary in appointments is an element of the independence of the judiciary, which is a basic feature.
Held: The amendment and the Act struck down by four to one; the collegium revived, with Chelameswar J dissenting.
Distinctions
| Basis | Collegium system | National Judicial Appointments Commission |
|---|---|---|
| Source | Judicial interpretation of Arts.124 and 217 | 99th Amendment inserting Art.124A |
| Composition | Chief Justice and four senior-most Judges | Chief Justice, two senior-most Judges, the Law Minister, and two eminent persons |
| Executive voice | Objections only, no veto | Effective veto through the two member rule |
| Status | In force | Struck down in 2015 |
| Principal criticism | Opacity and absence of stated criteria | Executive influence over appointments |
| Basis | Supreme Court Judge | High Court Judge |
|---|---|---|
| Appointing authority | President, after consultation (Art.124(2)) | President, after consultation (Art.217(1)) |
| Retirement age | 65 years | 62 years |
| Bar experience required | 10 years in a High Court | 10 years in a judicial office or as an advocate |
| Distinguished jurist route | Available under Art.124(3)(c) | Not available |
| Collegium | Chief Justice plus four senior-most Judges | Chief Justice plus two senior-most Judges |
| Bar on practice after retirement | In any court or authority in India (Art.124(7)) | In any court other than the Supreme Court and other High Courts (Art.220) |
Flashcards
What is the composition of the Supreme Court under Art.124(1)?
A Chief Justice of India and such number of other Judges as Parliament may prescribe; the sanctioned strength is now 38 in all, being the Chief Justice and 37 other Judges, under the Supreme Court (Number of Judges) Amendment Act, 2026.
What are the three qualifications under Art.124(3)?
Five years as a Judge of a High Court, or ten years as an advocate of a High Court, or being a distinguished jurist in the President's opinion.
Whose consultation is mandatory for appointing a Judge other than the Chief Justice?
The Chief Justice of India, under the proviso to Art.124(2).
What is the retirement age of a Supreme Court Judge?
Sixty five years.
What did the First Judges case decide?
That consultation does not mean concurrence and the executive has the ultimate power of appointment.
What did the Second Judges case decide?
That consultation means concurrence and the Chief Justice's opinion, formed with his senior colleagues, has primacy. It created the collegium.
How many Judges form the collegium for a Supreme Court appointment?
The Chief Justice together with the four senior-most Judges of the Court.
How many for a High Court appointment or transfer?
The Chief Justice together with the two senior-most Judges.
On what ground was the National Judicial Appointments Commission struck down?
That it destroyed the primacy of the judiciary in appointments, which is part of the independence of the judiciary and thus of the basic structure.
Who dissented in the Fourth Judges case?
Chelameswar J, who considered the collegium opaque and the amendment valid.
Can a retired Supreme Court Judge practise law?
No. Art.124(7) bars him from pleading or acting in any court or before any authority in India.
Who appoints officers and servants of the Supreme Court?
The Chief Justice of India, or a Judge or officer he directs (Art.146).
Exam Scenario
Problem: The Union Government proposes to appoint three Judges to the Supreme Court. For the first, it consults only the Chief Justice, who recommends a name after discussing it with two colleagues. For the second, the Government appoints an advocate of nine years standing in a High Court without consulting the Chief Justice at all. For the third, it declines to appoint the collegium's nominee, giving reasons relating to the candidate's suitability, and appoints a different person of its own choice. Parliament then enacts an amendment establishing a commission consisting of the Law Minister, two retired civil servants and the Chief Justice, in which any two members may veto a name. Advise on the validity of each step.
Step 1: Fix the composition of the collegium and the consultation rule
Apply Special Reference No. 1 of 1998. The collegium for a Supreme Court appointment is the Chief Justice plus the four senior-most Judges.
The proviso to Art.124(2) makes consultation with the Chief Justice mandatory for every appointment other than that of the Chief Justice. Art.124(3)(b) fixes the qualification for a High Court advocate at ten years standing.
Step 2: Apply that framework to each of the three appointments
| Appointment | Defect | Result |
|---|---|---|
| First: the Chief Justice recommends after discussing with two colleagues | The opinion was not formed with the four senior-most Judges, so Special Reference No. 1 of 1998 is not satisfied and the recommendation does not bind the Government | Procedurally defective, the defect lying on the judicial side of the process |
| Second: advocate of nine years standing, no consultation | Two independent objections. Art.124(3)(b) requires ten years, so he is not qualified at all. The proviso to Art.124(2) was also ignored | Void. No amount of consultation could cure the want of qualification |
| Third: collegium nominee declined, own nominee appointed | Second and Third Judges cases: the Government may return a recommendation with its objections and material, and the collegium must consider them, but primacy lies with the judiciary | Unconstitutional. It cannot appoint contrary to the recommendation, still less appoint a nominee of its own |
Step 3: Attack the amendment in this order
- State the composition. The commission consists of the Law Minister, two retired civil servants and the Chief Justice, and any two members may veto a name.
- Show the loss of primacy. With the Chief Justice one of four members and a two member veto, the judiciary is left without primacy and the executive has a decisive voice.
- Compare the National Judicial Appointments Commission. Apply Supreme Court Advocates on Record Association v Union of India (2015). This composition is in fact worse, since that Commission at least included three Judges.
- Close on Art.368. The scheme violates the independence of the judiciary and, that being a basic feature, the amendment is beyond the amending power under Art.368.
Two colleagues are not the collegium. An opinion formed after consulting only two Judges is not a collegium recommendation at all, and it does not bind the Government.
A qualification defect cannot be consulted away. For the second appointment the nine years point is fatal by itself, independently of the missing consultation under the proviso to Art.124(2).
Returning a name is not the same as overriding it. The Government may send objections and material back for reconsideration, never appoint a person of its own choice.
The collegium is not beyond criticism. As the Court acknowledged in 2015, the answer to the Government's legitimate complaints about opacity lies in reforming the collegium's procedure, not in transferring primacy to the executive.
Conclusion. The first appointment must go back to a properly constituted collegium. The second and third are void, and the amendment is unconstitutional as violating a basic feature.
See Also
- High Courts: Appointment, Transfer, Powers and Jurisdiction : the parallel provisions in Arts.217 and 222, governed by the same cases.
- Independence of Judiciary and Judicial Accountability : the wider structural guarantees of which appointment is one, and the removal procedure.
- Basic Structure Doctrine : the doctrine on which the National Judicial Appointments Commission was struck down.