Law and You > Constitutional Law > Appointment of Supreme Court Judge
India has a federal Constitution. It is the supreme law of the land. The Constitution provides the division of powers between Central and the State Governments. It is natural that dispute might arise between the Centre and its constituent units (primarily the States) regarding their respective powers. Therefore, in order to maintain the supremacy of the Constitution, there has to be an independent and impartial authority which will decide disputes between the Centre and the States and States inter se (among States). This function has been entrusted upon the Supreme Court of India. The Supreme Court is also the highest and the final interpreter of the Constitution and the general law of the land. The Supreme Court and the High Courts as the custodians and watchdog of the fundamental rights and freedoms of the people and their constitutional rights. In this article, we shall discuss appointment of Supreme Court judge, their qualifications, tenure, salary and allowances, and removal.
Provisions in regard to the judiciary in India are contained in Part V (“The Union”) under Chapter IV titled “he Union Judiciary” and Part VI (“The States‟) under Chapter VI titled “Subordinate Courts” respectively. It is, however important to emphasize that unlike other federal systems, for example, that of the United States, we do not have separate hierarchies of federal and State Courts. In India, though the polity is dual, the Constitution of India has provided a single integrated and unified judicial system for the whole country. It means that for the entire country, there is one unified judicial system, one hierarchy of courts with the Supreme Court as the highest or the apex court.
The Supreme Court is the highest court of law. The Constitution says that the law declared by the Supreme Court shall be binding on all small courts within the territory of India. Below the Supreme Court, are the High Courts located in the states. Under each High Court there are District Sessions Courts, Subordinate Courts and Courts of Minor Jurisdiction called Small Cause Courts.
In Union of India v Sankalchand Himmatlal Sheth, AIR 1977 SC 2328 case, the Apex Court referred Judiciary to as ‘watching tower above all the big structures of the other limbs of the state from which it keeps a watch like sentinel on the functions of other limbs.
According to Article 130 of the Constitution of India, the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.
Supreme Court as the Court of Record:
A court whose proceedings are recorded and available as evidence of the fact, then it is called the court of records. Thus, a court of record is a court whose acts and proceedings are enrolled for perpetual memory and testimony. These records are used with high authority and their truth cannot be questioned.
In Indian Constitution Article 129 make the Supreme Court the ‘court of record”. Article 129 says that 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. Article 215 empowers the High Courts of the states to be courts of record.
Appointment of Judge of the Supreme Court:
Appointment of judges in a democratic polity, whose aim is to secure social, economic and political justice to all sections of society, is a vital task and an important aspect of judicial independence. Judicial independence is of pivotal significance in empowering and facilitating the judges to administer justice impartially and without any fear and fervour. Impartial and transparent system of judicial appointment is thus the sine qua non for ensuring judicial independence and has a direct bearing on the impartiality, integrity and independence of judges.
Article 124:
Establishment and Constitution of Supreme Court:
(1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause (4)
2A. The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.
(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Explanation I.- In this clause “High Court’ means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.
Explanation II.- In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included.
(4) 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-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.
(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4):
(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.
The first CJI of the Supreme Court was Harilal Jekisundas Kania (26.01.1950 to 06.11.1951). Some Women Supreme Court judges are Justice M Fathima Beevi, Justice Sujata V Manohar, Justice Ruma Pal, Justice Gyan Sudha Misra, Justice Ranjana Prakash Desai, and Justice R Banumathi.
Article 124(1) of the Constitution of India, provides for the Constitution of the Supreme Court. According to the Article, there shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges
At present, the Supreme Court of India consists of a Chief Justice and, 30 other Judges. The Parliament may increase this number by law. Originally, the total number of judges was seven but in 1977, it was increased to 17 and in 1986 to 25, excluding the Chief Justice. Later in 2009, it was fixed at 31 Judges including the Chief Justice of India.
Article 124(2) of the Constitution of India vests the power of appointment of the Chief Justice of India (C.J.I.) and the Judges of the Supreme Court in the President. The President shall by warrant, make the appointment after consultation with such of the judges of the Supreme Court and the High Courts of the States, as he may deem necessary. Also, the provision speaks of “after” consultation and not “in” consultation. In the case of appointment of a judge other than the Chief Justice of India, the C.J.I. shall always be consulted. The President, mentioned in the provision means the Executive i.e. The President acting on the advice of Council of Ministers. The C.J.I. and other such judges of the Supreme Court and the High Courts shall be consulted by the President, as he may deem necessary.
In S.P. Gupta v. Union of India, (First Judges Case), AIR 1982 SC 149 case, a seven Judges Constitution bench ruled that the President is not bound by the opinion expressed by the Chief Justice of India as the Constitution required him to only consult the Chief Justice and consultation does not mean concurrence. However, consultation can be full and effective requiring the President to furnish all the material details under consideration so as to enable the Chief Justice to form an informed opinion. However, the President is not bound by the same. It was also ruled that a judge can be transferred against his will.
In Supreme Court Advocates-on-record Association v. Union of India, (Second Judges Case), (1993) 4 SCC 441 case, a nine judges’ bench of Supreme Court over ruled its previous decision and pronounced that the opinion of the Chief Justice is finally binding on the President. However, the opinion of the Chief Justice of India shall not be his personal opinion instead the opinion of judiciary formulated in consultation with two senior most judges of the Supreme Court, who shall constitute the Collegium. Within the collegium, the opinion of the Chief Justice of India shall have primacy. The President has power to send an opinion back to collegium for reconsideration with cogent reasons recorded and the Chief Justice shall initiate consultation afresh and afterwards if he reiterates the recommendations, the President is bound by it. Appointment of Judges, it was held, is an integrated participatory consultative process to select the best and the most suitable person for appointment as judges. In this exercise, both executive and judiciary have a complementary role to play. It was also ruled that as far as possible, seniority principle shall be the guiding criterion while appointing the Chief Justice of India.
Special Reference No.1 of 1998:
In response to a Presidential reference under article 143, a 9 judges bench was constituted to clarify the 1993 decision and they pronounced the law in following terms.
- The Chief Justice of India shall consult 4 senior-most judges instead of 2 while appointing the Supreme Court judges and transferring High Court judges. While appointing High Court judges, the Chief Justice of India should consult only 2 senior-most judges.
- If, at any point of time, it is known that none of the judges in the collegium is likely to succeed the Chief Justice of India, then the judge who is likely to succeed the Chief Justice under the seniority principle shall also be included in the collegium.
- Though the opinion of the Chief Justice of India shall continue to have primacy, if 2 or more judges of collegium oppose a proposal, the Chief Justice shall recommend the same. However, no opinion unsupported by the Chief Justice shall be recommended on behalf of Collegium.
- While making an appointment in relation to a High Court, Chief Justice of India shall also consult the senior most Supreme Court Judges who are conversant with the affairs of the High Court on account of them having served the High Court in the past (These judges are often known as consultee judges)
- While transferring High Court judges, the Chief Justice of India shall consult the Chief Justice of High Court which are parties to the transfer and these Chief Justices shall formulate their opinion in consultation with 2 senior-most judges of their courts so that the opinion tendered to the Chief Justice of India shall be the opinion of the concerned high court.
- If the procedure stipulated is not followed, then the President is not bound by such a recommendation.
- Judicial Review also is available in case of non-compliance of procedure.
The Constitution (99 Amendment) Act, 2014:
- Article 124 (2), article 217 (1) and article 222 (1) were amended to replace the word ‘consultation’ with ‘on the recommendation of NJAC referred to in article 124(A)’.
- Article 124 A was inserted in the Constitution. Under article 124 (A) (1), there shall be National Judicial Appointments Commission consisting of,
- The Chief Justice of India as the ex-officio chairperson.
- 2 senior most judges next to the CJI as members ex- officio.
- Union minister for Law and Justice as ex-officio member.
- 2 eminent persons nominated by a committee comprising of Prime Minister, leader of opposition and the Chief Justice of India, for a non- renewable term of 3 years as ex-officio members.
- Article 124 B was added by which the duty of the commission was prescribed which included the power to recommend names for appointment of Chief Justices and judges of Supreme Court and High Court, as well as to recommend the transfer of high court judges.
- Article 124 C was added by which the Parliament was given the power to regulate the proceedings of NJAC by enacting law.
- Article 127, article 128, article 224 and article 224 (A) were amended to enable NJAC to recommend the appointment of ad-hoc judges in the Supreme Court, attendance of retired judges in the Supreme Court, appointment of additional and backing judges of high court and attendance of retired judges in high court respectively.
- NJAC Act was also simultaneously passed under article 124 (C).
In Supreme Court Advocates on record Association v. Union of India, (Fourth Judges Case) 2015 case, the court ruled that any change made to Article 124 (2), article 217 (1) and article 222 (1) shall comply with the Law of Primacy of the opinion of the judiciary as pronounced in 1993 because it is integral to the independence of judiciary which is a part of basic structure. Following was held in the case:
- Article 124 (A) formed the constituent of all changes made under the Constitutional (99th amendment) Act, 2014. If Article 224 (A) is rendered unconstitutional, the entire amendment act would have been unconstitutional.
- Article 124 (A)(a)(b) are unconstitutional as they provided for the judicial component of NJAC which is comprised of 3 members out of 6 members’ commission. Hence, it is violative of Law of Primacy of opinion of judiciary.
- Article 124 (A) (1) (c) is unconstitutional as it provided for union law minister who represents Union of India which happens to be the largest litigant. Allowing litigant to hand pick judges is unconstitutional.
- Article 124 (A) (1) (d) is unconstitutional as the term eminent persons is vague, leaving open the possibility of persons having no eminence in law/ judicial affairs getting appointed as members of NJAC and hence unconstitutional.
Appointment of acting Chief Justice:
According to Article 126 of the Constitution of India, when the office of the Chief Justice of India is vacant or when the Chief Justice is unable to perform the duties of his office due to absence, the President shall appoint an Acting Chief Justice from among the Judges of the Supreme Court to perform the duties of the Chief Justice.
Appointment of ad-hoc Judges:
According to Article 126 of the Constitution of India, if at any time, there is no quorum of judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India is empowered to appoint Ad hoc judges in the Supreme Court from among judges of High Courts, having qualifications to be appointed Judges of the Supreme Court, for such period as he/she deems necessary. He/she can do so only with previous consent of the President and after consultation with the Chief Justice of the High Court concerned. The Judge so appointed is duty bound to give priority to the Supreme Court duties.
Attendance of retired Judges at sittings of the Supreme Court:
According to Article 128 of the Constitution of India, according to Article 126 of the Constitution of India, The Chief Justice of India may also invite a retired Judge of the Supreme Court or a retired Judge of the High Court having the qualification to be Judge of the Supreme Court, to sit and act as a Judge of the Supreme Court for such period as he deems necessary. This has to be done with the previous consent of the President and also of the person to be appointed.
Resignation of a Judge of the Supreme Court:
Article 124(2)(a) of the Constitution of India lays down that a Judge may, by writing under his hand addressed to the President, resign his office.
Qualifications of Supreme Court Judge:
Article 124(3) of the Constitution of India lays down qualifications to be possessed by the person to be appointed as the Supreme Court judge. According to the Article, a person to be qualified for appointment as a Judge of the Supreme Court–
- must be a citizen of India;
- should have been a Judge of the High Court for at least five years;
- should have been an advocate of the High Court for at least ten years; and
- is a distinguished Jurist in the opinion of the President
Salary and Allowances:
According to Article 125 of the Constitution of India,judges of the Supreme Court are to be paid such salaries as may be determined by Parliament by law and until so determined salaries are laid down in the Second Schedule (Article 125). In addition to this, they are also allowed sumptuary allowances, rent free furnished residences, telephone, water, electricity, medical and many other facilities.
Current salary of Chief Justice is Rs 2.80 lakh, up from the current Rs 1,00,000 and that of other judges is Rs 2.50 lakh, up from the current Rs 90,000.
Immunities to Supreme Court Judge:
To shield judges from political controversies, the Constitution grants them immunity from criticisms against decisions and actions made in their official capacity. The Court is empowered to initiate contempt proceedings against those who impute motives to the judges in the discharge of their official duties. Even the Parliament cannot discuss the conduct of the judge except when a resolution for his removal is before it.
Removal of Judge of the Supreme Court:
The Judge of the Supreme Court is eligible for performing his duties by holding office up to the age of sixty-five year if he has not resigned or disqualified on the basis of any act of misbehaviour or proving incapable of holding his duties. Article 124(4) of the Constitution of India lays down provisions for the removal of a judge of the Supreme Court. As per Article 124(4) of the constitution, President can remove a Supreme Court judge on proved misbehaviour or incapacity when parliament approves with a majority of the total membership of each house in favour of impeachment and not less than two-third of the members of each house present.
Impeachment of Supreme Court Judge:
A judge may be removed from his/her office only by an order of the President passed after an address by each House of Parliament for his removal on the ground of ‘proved misbehaviour or incapacity’, supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting in the same session. The procedure of the presentation of an address for investigation and proof of misbehaviour or incapacity of a Judge will be determined by Parliament (Article 124 (5)).
The Supreme Court has held that a Judge of the Supreme Court or High Court can be prosecuted and convicted for criminal misconduct. The expression ‘misbehaviour’ in article 124 (5) includes criminal misconduct as defined in the Prevention of Corruption Act.
The first case of impeachment is that of Justice V Ramaswami of the Supreme Court in Lok Sabha(1991-93). The first judge in Indian History, against whom impeachment motion was passed in Rajya Sabha-Justice Saumitra Sen of Calcutta HC. No judge in the SC has been Impeached so far.
Post-Retirement Jobs:
The Constitution prohibits a person who has held office as a judge of the Supreme Court from practising law before any Court in the territory of India (Article 124(6) and (7)). This is because the influence of an SC Judge is nationwide, and he would have an unfair advantage over other lawyers in any Court in the country. But it is to be noted that under Article 128, the Chief Justice may appoint the retired Judges of the Supreme Court to sit and act as Ad hoc Judges in the Supreme Court.