Supreme Court: Composition, Appointment & Removal of Judges

By | May 11, 2020
Supreme Court: Composition,

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Supreme Court: Composition, Appointment & Removal of Judges | Overview

This Article comprehensively covers the composition of the union judiciary i.e. the Supreme Court of India, the conditions of appointment and service for Supreme Court judges, and their removal from office. Article 124 of the Constitution of India covers the establishment and constitution of the Supreme Court.

Along the lines of the text of the Constitution of India, various legislations have come into effect which determines the conditions of service, the procedure for removal, the salaries to be given, the number of judges in the Supreme Court, etc.

These legislations have been amended time and again whenever a need has arisen. With 34 judges in the Supreme Court, including the Chief Justice of India, serving until they are 65 years of age, by virtue of the collegium system, the Supreme Court of India is functioning to meet the demands of justice in an ever-evolving diverse society like India. A coveted institution as such has never seen the removal of a judge from his/her office in the history of its existence.

Composition of The Union Judiciary

The Constitution under Article 124 (1) provides that the number of judges in the Supreme Court should not be more than 7, excluding the Chief Justice of India, unless the Parliament prescribes a larger number by law. Needless to say that with the current number of judges in the Supreme Court being 34 (including the Chief Justice of India), there exists legislation that prescribes this larger number of judges as the composition of the Supreme Court. This is the Supreme Court (Number of Judges) Act, 1956.

This Act has recently been amended via the Supreme Court (Number of Judges) Amendment Bill, 2019 and the maximum number of judges has been increased in the Supreme Court from 30 to 33 (excluding the Chief Justice of India).[1]

Appointment And Conditions of Service For Judges In The Union Judiciary

The Conditions of Service have been given in the Constitution of India and relate to the citizenship, years of practice, and age of an individual and the same has been discussed below. Along with this, the legislation governing the salary and allowances of the Supreme Court Judges has also been discussed. After that, the Appointment of the judges to the Supreme Court has been discussed. In lieu of the same, the history of the evolution of the Collegium system has been elaborated upon which includes an account of the famous Three Judges Cases.

Conditions of Service of Judges of Supreme Court

  • A person shall not be qualified for the appointment of a judge of the Supreme Court unless he/she is a citizen of India. Additionally, such a person must have been a judge at a High Court or two or more such Courts consecutively, for at least 5 years. If not that, such person should have been an advocate at a High Court or two or more such Courts for a period of at least 10 years. The person could also be a distinguished jurist in the opinion of the President and thus appointed as a judge of the Supreme Court.[2]
  • Every person who becomes a judge of the Supreme Court, shall make and subscribe before the President, an oath or affirmation according to the form set out for that purpose in the Third Schedule.[3]
  • Every judge of the Supreme Court shall be appointed by the President, under his/her hand and seal, after consultation with other judges of the Supreme Court, and High Courts of the states in which such Judge has served. [4]
  • In the case of the appointment of a judge other than the Chief Justice of India, the Chief Justice of India shall always be consulted.
  • Such a judge would hold office until he/she attains the age of 65 years.[5]

Salaries of Judges of Supreme Court

  • Judges of the Supreme Court shall be paid such salaries as may be determined by the Parliament. Judges shall also be entitled to such privileges, allowances, and rights like pension and leave of absence as shall be determined by the Parliament from time to time.[6]
  • The privileges, allowances, and rights entitled to a judge, shall not be changed to his/her disadvantage after his/her appointment.
  • The legislation that determines the salaries of the Supreme Court judges is the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958. This legislation has been amended recently vide the Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2017 and the salaries of the judges has been increased from Rs. 90,000 per month to Rs. 2,50,000 per month and the salary of the Chief Justice of India has been revised from Rs. 1,00,000 per month to Rs. 2,80,000 per month. Sumptuary allowances have also been increased.[7]

The Three Judges Case And The Collegium System

  • Until 1973, the appointment of judges of the Supreme Court happened by a method where the senior-most judge of the Supreme Court became the Chief Justice of India and he/she, in consultation with the President and other judges of the Supreme Court and respective High Courts, would decide the appointment of other judges to the Supreme Court.[8]
  • However, when Justice AN Ray was made Chief Justice after superseding the seniority of three judges, this convention was broken. It was under the garb of ‘merit’ replacing seniority. It was an assault on the independence of the judiciary because of the interference of the executive in the appointment process.[9] Following this, there were three cases that marked the journey of the finalising of the system for the appointment of judges.
  • The first case is S.P Gupta v. Union of India. In this case, the Court decided that the word ‘consultation’ does not mean ‘concurrence’ and that the President would have the final say in making a decision with respect to the appointment of judges. It also held that the only two grounds on which the Executive’s decision could be questioned was if it was based on irrelevant considerations or if it was mala fide. This case kept the supremacy of the Executive in appointing judges, intact.[10]
  • The second case was Supreme Court Advocate-on-Record Association v. Union of India. In this case, the first judge case was overruled. The Court held that in the event of a conflict between the opinion of the Chief Justice of India and the President, the opinion of the Chief Justice of India shall prevail. It was also decided that from then onwards, a collegium shall be formed, which shall decide the appointment of judges to the Supreme Court and the High Court. This Collegium shall consist of the Chief Justice of India and two senior-most judges of the Supreme Court for the matter of appointment of judges in the Supreme Court and the Chief Justice of the High and two senior-most judges of the High Court, with respect to the appointment of judges in the High Court. Laying down the foundation for judicial supremacy in the matter of appointment of judges in the Courts and maintaining judicial independence, this case became the second pillar in the journey of appointment of judges.[11]
  • The third judge case was under a reference to the Supreme Court by the President of India. This reference happened due to a controversy in which the Chief Justice of India gave the names to the President of India, for assent, without consultation with the two senior-most judges of the Supreme Court. The Court held that advice given by the Chief Justice in this matter, without consulting the collegium, would not be binding on the government. The Court also expanded the collegium to include four senior-most judges instead of just two, besides the Chief Justice of India.[12]

Appointment of Acting Chief Justice of India

When the Office of the Chief Justice of India is vacant by reason of absence or otherwise, and/or the Chief Justice is unable to perform the duties of his/her office, the duties shall be performed by such other judge of the Supreme Court as the President may appoint for that purpose.[13]

Removal of Judges of Supreme Court

  • Judges may leave office voluntarily or they may be removed from their office. Article 124 (2) (a) provides for a procedure by which judges can resign from their posts by writing to the President. The other method has been provided for under Article 124 (4).
  • The removal of a judge of the Supreme Court can only happen if both the Houses of the Parliament support a motion of removal of such judge on the grounds of proved misbehaviour or incapacity, and pass it by not less than a three-fourths majority, and further, the President passes an order in this regard for the removal of such Judge.
  • The Parliament can pass a law with respect to regulating the procedure for presentation of an address by the President in this matter and conduction of investigation for proof of misbehaviour or incapacity.

In lieu of the same, the Parliament has passed the Judges Inquiry Act, 1968. This Act lays down the procedure by which a Judge can be removed from Office.

  • An Impeachment motion may originate in either House of the Parliament.
  • To initiate proceedings, either at least 100 members from Lok Sabha should give a notice to the speaker or at least 50 members from Rajya Sabha must give notice to the Chairman in Rajya Sabha.
  • After consultation with individuals who presented the notice and examination of relevant material, the Speaker or the Chairman shall decide on admitting or dismissing the notice.
  • If the motion is admitted, a three-member committee shall be constituted to investigate the complaint. The committee shall comprise of (i) A judge of the Supreme Court (ii) A Chief Justice of a High Court (iii) A distinguished jurist
  • This committee shall frame charges based on which the investigation shall be conducted.
  • A copy of the charges shall be presented to the judge against whom the charges are being framed and he/she shall submit a defence on his/her behalf.
  • Once the investigation has been completed, the committee shall submit the report to the Speaker or the Chairman, who will then lay the report before the relevant House of the Parliament. If the report does record a finding of misbehaviour and/or incapacity, the motion for removal of the judge will be taken up for consideration and debated.
  • The motion for removal has to be passed by a majority of the total strength of each of the Houses and also by a two-thirds majority of members of each House who are present and voting.
  • Once the motion has been adopted by both Houses following these criteria, the President shall issue an order for removal of the Judge.

References

[1]The Supreme Court (Number of Judges) Amendment Bill, 2019, PRSINDIA.ORG, available at  https://www.prsindia.org/billtrack/supreme-court-number-judges-amendment-bill-2019

[2] Article 124(3), Constitution of India,1950

[3] Article 124(6), Constitution of India,1950

[4] Article 124(2), Constitution of India,1950

[5] Ibid

[6] Article 125, Constitution of India,1950

[7] Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2017, PRSINDIA.ORG, available at https://www.prsindia.org/billtrack/high-court-and-supreme-court-judges-salaries-and-conditions-service-amendment-bill-2017

[8]  BP Sinha, Reminiscences and Reflections of a Chief Justice (1985) 72

[9] Chandrachud, A. (2012). Supreme Court’s Seniority Norm: Historical Origins. Economic and Political Weekly, 47(8), 26-30. Retrieved May 2, 2020, from www.jstor.org/stable/41419894

[10] S.P Gupta v. Union of India, (1982) 2 S.C.R. 365, AIR 1982 SC 149)

[11] Supreme Court Advocate-on-Record Association v. Union of India,  AIR 1994 SC 268)

[12] In Re: Under Article 143(1) Of The Constitution of India  vs Unknown, AIR 1999 SC 1

[13] Article 126, The Constitution of India,1950


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