Welcome to SCOTUSblog’s recurring series in which we interview experts on different supreme courts around the world and how they compare to our own. In our previous columns, we focused on the UK Supreme Court and the Supreme Court of Canada. Today’s column focuses on one of the most fascinating high courts in the world: that of India. To help dispel my profound ignorance of this institution (unusual headlines aside), I corresponded with Professor Rohit De.
Rohit De is an associate professor of history at Yale University. He is the author of the 2018 book A People’s Constitution: The Everyday Life of Law in the Indian Republic, and, with Ornit Shani, the 2025 book Assembling India’s Constitution: A New Democratic History. He has a PhD in history from Princeton University, and law degrees from Yale Law School and the National Law School of India.
So, to set the scene, when was the Supreme Court of India established?
The Supreme Court of India was established under the Indian Constitution that came into force on January 26, 1950, and had its first session on January 28, 1950. The court celebrated its 75th anniversary in 2025. The original Supreme Court of India was comprised of the chief justice and associate judges of the Federal Court of India set up in 1937 under colonial rule. The Federal Court had a very limited jurisdiction and docket and heard fewer cases in the 13 years of its existence than the Supreme Court of India would in its first year.
What is the profile of a typical justice on India’s Supreme Court?
The Supreme Court of India is perhaps the only court in the world that appoints itself. Article 124 of the Constitution of India had provided that judges of the Supreme Court be appointed “after consultation” of “such judges of the Supreme Court and High court as the President may deem necessary” and required consultation with the chief justice of the Supreme Court. In the first few decades, such consultation was not seen as binding, but in practice no Supreme Court judge had been appointed without the concurrence of the chief justice.
In the late 1960s and 1970s, the Supreme Court of India frequently clashed with Indira Gandhi’s government, and during the emergency [in which Indira Gandhi announced a national emergency in India] the government attempted to favor and promote particular judges. In the aftermath of the emergency, lawyer’s concerns about court packing led to a series of cases where the Supreme Court ruled that despite the constitution stating that the chief justice be “consulted,” it meant that such consultation must mean concurrence. They also devised a new procedure for appointment, creating a collegium of the chief justice and the four senior most Supreme Court judges who would select and forward nominees to the executive for appointment to the judiciary.
With the election of Narendra Modi in 2014, parliament and state legislatures with cross-party support enacted a constitutional amendment to create a National Judicial Appointments Commission, comprising of the chief Justice, two senior most judges, the Union Law Minister, and two eminent persons. The last two members would be selected by a committee of the prime minister, [the] leader of [the] opposition, and the chief justice, and required that one of these eminent persons had to be either a woman, a minority, or a member of a scheduled caste, schedule tribe, or “other backward castes.” This amendment was struck down by the Supreme Court of India, on the grounds that it interfered with judicial independence, and appointments continue to be made through the Supreme Court collegium.
Do its justices often come from having served as a judge on a lower court?
The constitution requires that a justice of the Supreme Court be either a judge of a high court with five years’ experience, or an advocate with ten years’ experience or a “distinguished jurist.” In practice, almost all Supreme Court judges have served close to a decade as a judge of a high court. High court judges are appointed both from the lower judiciary (which they would have joined through an examination) or the high court bar. Of the 280 or so judges of the Supreme Court to date, only 10 have been appointed directly from the bar (a majority of them since 2014). Despite there being a provision, no academic has been appointed to the Supreme Court.
What is the makeup of the Supreme Court of India?
A recent book by Aparna Chandra, Sital Kalantry, and William Hubbard points out that while the Supreme Court of India has reflected to some extent India’s regional diversity (with the exception of India’s Northeast), it remains overwhelmingly Hindu, upper-caste, and male. There has always been some representation of religious minorities on the Supreme Court, although not always in proportion to their numbers in the population or legal profession. There have been only 11 women judges on the Supreme Court of India since 1950. While Justice B.V. Nagrathna is in line to be India’s first woman chief justice in 2027, she is at present the only woman of the 34-member court.
The number of Supreme Court judges belonging to scheduled castes and tribes are even fewer. There has been concern expressed that the numbers of high court judges who comprise a pool of likely appointees to the Supreme Court mirror these trends, making it less likely that there will be greater representation in the future. The higher judiciary is the only major state institution that does not have constitutionally mandated quotas for affirmative action.
Do the justices serve terms – if so, of what length?
Judges of the Supreme Court of India have to retire at the age of 65, so tenure is determined by the age at appointment. Recent studies have shown the average tenure of a Supreme Court judge is 5.3 years, with judges appointed before the 1980s having slightly longer terms averaging 6 years. Only nine judges of the 280 or so judges to have served on the Supreme Court of India since 1950 have had a tenure of a decade or longer.
How many justices sit on the court?
As noted, the current strength of the Supreme Court of India is 34 (including the chief justice). The original sanctioned strength of the court in 1950 was eight judges, and the number has been periodically revised by parliament (most recently in 2019), in response to a rising caseload and demands by the judiciary. While the current court is at its full strength, there have been periods when several seats have laid vacant.
Given the court’s size, are cases heard by panels?
The Supreme Court sat as a full bench of eight judges for cases in the 1950s, before starting the practice of sitting in panels of three to five judges. Over the last two decades, most Supreme Court benches consist of 2-3 judges. However, for any case involving a “substantial question of law,” the Constitution requires that it be heard by a panel for five or more judges.
How does this work in terms of stare decisis?
While responding to caseload, the existence of panels of different sizes has raised questions around precedent and stare decisis. For instance, is a two-judge bench required to follow a principle laid down by another two judge-bench, or is a three-judge bench (constituted largely out of administrative necessities) superior to a two-judge bench? Or for instance, would a 2-1 ruling of a three-judge bench outweigh the opinion of a unanimous two-judge bench? As a recent discussion notes, the Supreme Court has been developing a jurisprudence taking into account bench strengths.
How are the panels selected?
This remains a contentious question. The power to create panels and assign cases reside in the office of the chief justice, exercising his or her powers as a “master of the roster.” While the chief justice’s views in judicial decisions have the same value as any other judge, it’s understood to be a determining voice in administrative matters. For much of its history, these administrative decisions were not a matter of public discussion, until a press conference by the four senior most judges in 2018 raised concerns about Chief Justice Dipak Mishra’s decisions to assign cases. This was followed by two legal challenges that argued that the chief justice’s administrative powers had to be guided by a public set of principles or exercised through the collegium of his peers. However, both challenges were rejected by a bench headed and constituted by the chief justice whose powers have been challenged.
Since 2018, there has been an attempt to create public rosters assigning certain subjects to certain judges (i.e. income tax bench, family law bench, etc.). However, the chief justice determined the assigned subjects, the composition of benches, and moving a case to a larger bench also constituted by his office. As scholars like Nicholas Robinson have demonstrated, one of the implications of the chief justice’s power in constituting benches is that a chief justice rarely finds himself in dissent.
Does the full court ever sit?
Apart from a few cases from the 1950s, the full court has never adjudicated a case. The largest panel assembled was of 13 judges in Kesavananda Bharati v. State of Kerala, 1973 (discussed more below) which had to decide on the question of judicial review of constitutional amendments. An 11-judge bench in I.C. Golaknath v. State of Punjab, 1967 had to rule on whether it was possible to delete a fundamental right in the constitution through amendment. There have been a number of nine-judge benches constituted, most recently in Justice K. Puttuswamy v. Union of India in 2017, where the court held that there was a right to privacy guaranteed under the Indian constitution.
Typically, how is the opinion writer assigned?
Usually the presiding judge on a bench authors the first opinion which is circulated to the other judges who may suggest changes or write a concurrence or a dissent.
Is there a significant tradition of concurrences or dissents on the court?
In high-profile cases heard by five or more judges, concurrences are common and there is a long tradition of powerful dissents which have drawn both scholarly and public attention. The plurality was most striking in the Kesavandana Bharti case where 13 judges issued 11 separate opinions, overlapping in concurrence and dissent. However, recent quantitative studies suggest that two-judge benches are less likely to have dissents and concurrences.
Does the Supreme Court of India only hear appeals? Are there any cases in which it has original jurisdiction?
Apart from appeals from the high courts and certain tribunals, the Supreme Court of India exercises wide original jurisdiction over a number of aeras, including disputes between the Union and the states, or between states; the enforcement of fundamental rights; and over elections of the president and vice-president and wide powers of contempt. The court also has an advisory jurisdiction under Article 143 where the president (on advice of the cabinet) can refer a question to get the Supreme Court’s opinion on substantial questions of law or matters of public importance; these opinions are considered persuasive but not binding. The Supreme Court of India has also asserted it’s suo-moto powers which allow judges to initiate matters in the “urgent public interest” even in the absence of a formal petition. Finally, the Supreme Court entertains review petitions on its judgments, and as a last resort, even a curative petition heard by the original bench if there’s an allegation that there has been grave violation of natural justice, bias, or a “clear miscarriage of justice”.
However, the bulk of the Supreme Court’s dockets arises from the particularly wide discretionary “special leave to appeal.” As Chandra and others document, the Supreme Court receives over 60,000 SLP applications and admits close to 10,000 every year. In 2025, the Supreme Court handled close to 75,000 cases, delivered around 1,400 judgements, and has 92,000 cases pending.
Are Supreme Court hearings publicly available?
Supreme Court hearings and opinions are widely discussed and viewed across Indian media, particularly after the live streaming of constitutional bench hearings by the Supreme court.
My understanding is that the Supreme Court of India is widely considered one of the most powerful supreme courts in the world (and what you’ve told me has certainly not changed my view on that front). Is that accurate?
The Supreme Court of India is “potentially” one of the most powerful courts in the world. This is not just a question of institutional design but a result of decades of strategic jurisprudence. The court has established its authority as the final arbiter of the constitutional text, built public support by expanding locus standi [standing], and devising creative remedies. As described above, it has also asserted supremacy in controlling judicial appointments.
In the Kesavananda decision, the court held that constitutional amendments, even if they satisfied procedural requirements of parliamentary majorities and assent by state legislatures, were subject to judicial review and the court could declare an amendment unconstitutional if it violated the “basic structure of the constitution.” The “basic structure” doctrine was judicially created, and included a range of broad concepts including secularism, federalism, freedom and dignity of the individual, judicial independence, etc. The Supreme Court has used the doctrine to strike down amendments, predominantly in cases where the executive sought to limit judicial review. Through its history it has struck down or narrowly read legislation, executive orders and ordinances, as well as found elements of religious law or customary law to be unconstitutional.
Through the 1980s, the court read down the requirements for locus standi, holding that in cases of public interest, any member of the public (including the court itself through suo-moto action) can make a representation on behalf of those who can’t represent themselves or on questions of public interest such as environmental pollution. In the 1980s, they created the concept of epistolary jurisdiction, turning even postcards or letters sent to the court as petitions for actions.
The court has not been constrained by textualism or available remedies and frequently used its powers under Article 142 of the Constitution, to make “any order as is necessary for doing complete justice in any cause.” These include the device of continuing mandamus, in cases of environmental pollution or food security, where a case is not finally concluded and the executive is required to report to the court monthly to demonstrate progress in meeting its goals. And finally, as described previously, the court has taken upon itself the power and superintendence of judicial appointments to the Supreme Court and high court and transfers between high courts. The threshold of impeaching a Supreme Court judge is very high, and there have been no successful impeachments in its 75-year history.
Despite the vast potential of powers that the Supreme Court enjoys, its periods of assertion are limited. The Supreme Court was most active in the 1990s and early 2000s when India was ruled by coalition governments. With the election of a BJ [Bharatiya Janata]-led government with an absolute majority in 2014, the Supreme Court has been relatively restrained in its exercise of powers. For example, while they decisively struck down the constitutional amendment to change judicial appointments in 2015, there has not been significant pushback when the executive has delayed appointments of judges recommended by the Supreme Court collegium for months leading to candidates withdrawing. The Supreme Court has also used its contempt powers sparingly against the government, even when their decisions have been ignored or defied.
Constitutional scholar Gautam Bhatia has pointed out that in recent years the Supreme Court has been evasive, often delayed hearing and deciding on critical constitutional questions which would challenge executive policies, with the resultant delay often leading to a remedy being infructuous or having little impact. For instance, the constitutional challenge to a new system of electoral funding through non-transparent electoral bonds was brought before the court in 2017, and the Supreme Court finally heard and struck the policy down as unconstitutional in 2024. However, the six-year gap meant that the policy had a significant impact on electoral cycles.
What were some major issues recently decided by the Supreme Court of India?
With limited parliamentary opposition, the Supreme Court has been the site of major policy contestation in recent years. I’ll just address two cases, one involving same-sex marriage and the other electoral systems.
In 2023, in Supriyo v. Union of India, in a split three-two verdict the Supreme Court declined to recognize marriage rights and adoption rights for same-sex couples. Closely following the Supreme Court’s decriminalization of sodomy in Navtej Johar in 2018, petitioners had argued that the Special Marriage Act of 1954 which governs non-religious marriages in India be read to include same-sex marriage. The two majority opinions held that there was no fundamental right to marry, that reading the act to include same-sex couples would be intruding upon a legislative function, and this would have cascading effects on a large number of associated laws. The minority opinion did make a powerful case that same-sex couples have a right to form “civil unions” flowing from their rights to privacy and dignity, and the exclusion of same-sex persons from adoption laws was discriminatory.
The Supreme Court recognized marriage between trans persons (provided they had opposite genders) and asserted the principles of non-discrimination, freedom from harassment, and accepted the Union government’s suggestion of creating a committee to give limited legal rights and benefits to same-sex couples, such as joint bank accounts, recognition as next of kin in medical situations, prison visitation, income tax benefits, etc. The committee was constituted in April 2024 and is yet to finalize its report.
[As for elections,] at present, the Supreme Court is hearing legal challenges to the Special Intensive Revision of electoral rolls being conducted by the Election Commission of India. Petitioners, including many of India’s opposition parties, have argued that the process is being used to delete millions of voters, often from certain demographics and regions without due process. The Supreme Court has not ruled on the legality of the exercise but through a series of hearings has been monitoring the exercise requiring a personal notice to the individual affected, adequate time for a hearing, processes of secondary verification, expanding the list of eligible documents to prove identity, creating special tribunals of judges to adjudicate claims for unfair deletion, and sharing proposed deletions publicly and with major political parties. The hearings have seen the appearance of noted political scientists and psephologists, the physical appearance in court of persons declared dead in the electoral rolls, and arguments in person made by the chief minister of West Bengal. State assembly elections are to be held in April 2026, and the voter lists are yet to be finalized.
What have been some particularly controversial issues decided by the Supreme Court of India throughout its history?
The Supreme Court has been the center of high stakes controversial litigation since its inception.
The Supreme Court’s most infamous judgement remains the 1976 case of ADM Jabalpur v. Shivkant Shukla, during India’s period of emergency rule, where it held that fundamental rights can be suspended for the duration of a declared emergency. This in effect rendered the thousands detained under emergency regulations and those killed and tortured without legal remedies. Following the emergency the constitution was amended to ensure that fundamental rights could only be suspended during war or external aggression (and not an emergency arising from armed rebellion or internal disturbances) and that the right to life and liberty could never be suspended. The leading judges in the case expressed their regret about the decision, though detention on grounds of national security remains common and the Supreme Court tends to defer to executive judgement.
The court has also been a site of contestation on social questions and religious freedom. The Indian Constitution recognizes personal laws, i.e. religious communities may be governed by religious law in questions of marriage, divorce, adoption, succession, and trusts. But there has been frequent litigation over whether religious laws have to be in conformity with Constitutional principles. In Shayara Bano v Union of India, a Muslim woman challenged the constitutionality of talaq-e-biddat, or a process through which a Muslim man may divorce his wife by saying “I divorce you” three times. While a 3-2 majority of the court held that the practice was illegal, there was no consensus as to its reasoning. Two judges held that personal laws have to be tested against fundamental rights to be valid and the practice was manifestly arbitrary. However, the third judge joining the decision held that the practice was illegal because it violated Islamic law by not allowing for the Quranic practice of reconciliation before divorce. The politics of composition of the bench were reflected by the fact that the judges belong to five different religions (Hindu, Muslim, Christian, Sikh, and Parsee). However, all were men.
Perhaps the most controversial decision in recent years has been the Supreme court’s decision in the Ayodhya case. The case was originally a property title suit over a 16th century mosque in Ayodhya that many Hindus believed was built on the same spot as the birthplace of the God Ram, demolishing a temple that had stood there. The site had been the focus of political mobilization, and in 1992, a mob of Hindu nationalist activists had destroyed the mosque. In an unsigned judgement running over a thousand pages, after close to seven decades of litigation, the Supreme Court awarded title of the site to the deity, Lord Ram, and directed a government run trust to construct a temple there. It drew on archeological findings of older structures under the mosque to evidence “uninterrupted Hindu worship.” The court also criticized the demolition of the mosque as an illegal act, and used its powers under Article 142 to direct the government to allocate double the amount of land to a Muslim trust to construct a mosque at another site in Ayodhya.
The United States Supreme Court is often seen as partisan. Does the Supreme Court of India have a partisan reputation?
Since the Indian Supreme Court is not selected by a legislative body, it’s difficult to ascribe party partisanship in the same form as the U.S. There have been a handful of Supreme Court judges who were members of political parties in the early part of the career, but this was not necessarily a factor in their appointment, or in some cases even their jurisprudence. For instance, in the first few decades when India was ruled almost continuously by the Indian National Congress, the government had appointed judges with former membership of the Communist and Socialist parties. Among practitioners and the public, a more common framework is to see the degree of deference that judges give to the executive (often irrespective of party affiliation) in cases that involve the government, and whether it co-relates to positions given to judges after retirement. The relatively short tenure of judges, and chief justices, makes it difficult for a single judge to have a long-term individual influence upon the institution.
But the Supreme Court remains quite sensitive to criticism, most recently banning a 8th grade social science textbook for a reference to “corruption at various levels in the judiciary” and appointing a committee to approve the new textbook.
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