Appointment of Judges in Supreme Court

• 22 May 2023

For Prelims: Collegium System, Chief Justice of India.

For Mains: Evolution of the Collegium System and its Criticism, Appointment of Judges in SC

Why in News?

The Supreme Court of India recently witnessed the administration of oath to two new judges, Justice Prashant Kumar Mishra, and Justice K.V. Viswanathan, by Chief Justice of India DY Chandrachud.

• With their induction, the court has reached its sanctioned strength of 34 judges.

How are Supreme Court Judges Appointed?

• Composition and Strength of the Supreme Court:
  • Originally, the Supreme Court had eight judges (one chief justice and seven others).
  • The Parliament has increased the number of judges over time.
  • The current strength of the Supreme Court is 34 judges (one chief justice and 33 others).
• Qualifications for Appointment as a Judge:
  • According to Article 124(3) of the Constitution, a person can be appointed as a judge of the Supreme Court if he or she:
    • A person must be a citizen of India.
    • Must have served as a judge of a High Court for at least five years or two such courts in succession.
    • Alternatively, must have been an advocate of a High Court for at least ten years or two or more such courts in succession.
    • Must be a distinguished jurist in the opinion of the president.
• Appointment:
  • The Judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution.
    • The President consults with judges of the Supreme Court and High Courts to make informed appointments.
• Oath of Office:
  • Every appointed judge must make and subscribe to an oath before the President or an appointed person.
  • The oath includes commitments to uphold the Constitution, sovereignty and integrity of India, and perform duties without fear or favor.
• Tenure and Resignation:
  • There is no prescribed minimum age limit for a judge's appointment.
  • A judge of the Supreme Court serves until they reach the age of 65 years.
    • However, a judge may resign before reaching the age of 65 years by tendering their resignation to the President.
• Salaries and Allowances:
  • Salaries, allowances, privileges, leave, and pension of Supreme Court judges are determined by Parliament.
    • The Salaries, Pension, and Allowances of the Supreme Court Judges are charged upon the Consolidated Fund of India.
• Post-retirement Restrictions:
  • After retirement, a judge of the Supreme Court is prohibited from practicing law in any court in India or pleading before any government authority.
  • As per Article 128 of Indian Constitution, any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with the prior permission of the President of India.
• Removal:
  • A judge of the Supreme Court can only be removed from office by an order of the President.
  • The removal process requires an address by each House of Parliament, supported by a special majority i.e., a majority of the total membership of that House and a majority of not less than two-thirds of the members present and voting.
  • The grounds for removal are proven misbehaviour or incapacity.
  • Parliament has the authority to regulate the procedure for presenting the address and investigating and proving the misbehaviour or incapacity of a judge.
  • Once appointed, judges can serve until the age of 65 and cannot be removed during their tenure except for proved misbehaviour or incapacity.
• Collegium System for Judicial Appointments:
  • Judges of the higher judiciary are appointed through the collegium system.
    • The collegium, consisting of the Chief Justice of India and the four senior-most judges of the Supreme Court, decides on appointments, elevations, and transfers of Judges.
    • The term "collegium" is not mentioned in the Indian Constitution but has been established through judicial pronouncements.

How Did Collegium Evolve?

• First Judges Case (1981):
  • It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
  • The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
• Second Judges Case (1993):
  • SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
  • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
• Third Judges Case (1998):
  • SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
• Fourth Judges Case (2015):
  • The 99^th Constitutional Amendment Act of 2014 and the National Judicial Appointments Commission Act of 2014 has replaced the collegium system of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Appointments Commission (NJAC).
    • However, in 2015, the Supreme Court declared both the 99th Constitutional Amendment as well as the NJAC Act as unconstitutional and void in the fourth judge case. Consequently, the earlier collegium system became operative again.

UPSC Civil Services Examination, Previous Year Question (PYQ)

Prelims

Q. With reference to the Indian judiciary, consider thefollowing statements: (2021)

1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with the prior permission of the President of India.
2. A High Court in India has the power to review its own judgement as the Supreme Court does.

Which of the statements given above is/are correct?

(a) 1 only
(b) 2 only 
(c) Both 1 and 2
(d) Neither I nor 2

Ans: (c)

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Mains

Q. Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. (2017)

Source: TH