(Indian Polity) THE JUDICIARY - Supreme Court, Qualifications, Appointment, Tenure and Removal of Judges
Submitted by admin on Thu, 03/05/2018 - 12:36pm
As we know, judiciary is one of the three organs of the government, others being the legislature and the executive. It interprets the law of the land, protects fundamental rights, settles the disputes and acts as guardian of the Constitution. It sees that the government of the day is run according to the provisions of the Constitution. India has a single unified and integrated judicial system and the Supreme Court is the highest court in India. This is unlike the dual court system in USA- the federal and state courts, adjudicating under separate Constitutions. A single, integrated judiciary represents a hierarchy of courts. The Supreme Court stands at the top of this single integrated judicial system with High Courts at the State level. Below the High Courts, there are several subordinate courts such as the District Courts which deal with civil cases and the Session Courts which decide criminal cases.
THE SUPREME COURT
Article 124 provides for the establishment and constitution of Supreme Court of India, which is the apex court of India. It was established on 28th January, 1950 i.e. two days after the commencement of the Constitution.
Article 124(1) – “There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a large number, of not more than seven other judges.”
The Parliament is competent to increase the number of judges if it deems necessary. To begin with, besides the Chief Justice, there were only 7 other judges. The Parliament has increased the number of judges from time to time. As in 2014, there are 29 judges besides the Chief Justice who is also called the Chief Justice of India. The sanctioned strength of the judges is 31, consisting of the Chief Justice and 30 other judges.
Appointment of Judges (Article 124)
The Chief Justice and other judges of the Supreme Court are appointed by the President of India. While appointing the Chief Justice, the President is constitutionally required to consult such other judges of the Supreme Court as he deems proper, but outgoing Chief Justice is always consulted. Normally, the senior most judge of the Supreme Court is appointed as the Chief Justice of India, although there is no constitutional requirement to do so. While appointing other judges, the President is bound to consult the Chief Justice and other senior judges of the Supreme Court and High Courts, if he deems proper.
Whenever there is vacancy or a likely vacancy in the Supreme Court, a collegiums comprising of the Chief Justice and four other senior most judges consider various names and recommend the names of the person to be appointed as judges of the Supreme Court. This system is based on a ruling of the Second (1993) and Third Judges Case (1998). Thus, while the Constitution still provides that the President is the appointing authority of the Supreme Court judges, the ruling of the Supreme Court, has since 1999, become virtually binding on the President. The power of selection of Judges has passed on to a group of Supreme Court judges, called the collegiums of the Court. The President now performs the formality of appointing the nominee of the Supreme Court, after the Law Ministry formally recommends these names to him. The Constitutional (121st Amendment) Bill, 201 seeks to replace the present collegiums system with a Judicial Appointment Commission (JAC). [Please see the collegiums System issue and JAC bill at the end of the chapter.]
Qualifications for appointment as a judges of the Supreme Court
A person to be qualified for appointment as a Judge of the Supreme Court must:
1. be a citizen of India; and
2. has been a Judge of a High Court or two or more such courts in succession for at least 5 years; or
3. has been an Advocate of a High Court or one or more such courts in succession for at least 10 years; or
4. a distinguished jurist in the opinion of the President.
Tenure and Removal of the Judges of Supreme Court
A Judge of the Supreme Court vacates his office on attaining the age of 65 years or by resignation addressed to the President or by removal by the President upon a resolution passed by both Houses of Parliament. A judge of the Supreme Court does not hold office during the pleasure of the President. In exceptional cases, he may be removed before the age of retirement, according to the procedure laid down in the Constitution. He can be removed from office by an order of the president, passed after an address by each House of the Parliament supported by a majority of total membership of the House not less than two-third majority of the members of each House present and voting, passed in the same session, has been presented to the President. The ground for such removal can be ‘proved misbehavior or incapacity only. Further, Parliament under Article 124(5) may by law regulate the procedure for the removal of judges of the Supreme Court.
Accordingly, Parliament has passed Judges (Inquiry) Act, 1968. Under this Act, a motion seeking the removal of a Judge can be presented before either of the House of Parliament, whereupon following procedure is followed:
1. A motion addressed to the President signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha is delivered to the Speaker or the Chairman.
2. The motion is to be investigated by a Committee of three (2 Judges of the Supreme Court and a distinguished jurist).
3. If the Committee finds the Judges guilty of misbehavior or that he suffers from incapacity the motion, then the motion for removal of the judge together with the report of the Committee is taken up for-thirds of that House where the motion is pending.
4. if the motion is passed in each House by majority of the total membership of that House and by a majority of not less than-thirds of that House present and voting the address is presented to the President.
5. The Judge will be removed after the President gives his order for removal on the said address.
The Judge in question has the right to defend himself or through his counsel before the Judicial Committee. The Committee submits its report to the presiding officer of the House in which the motion has been introduced. Parliament may or may not act upon the report of the Judicial Committee. However, if the judicial committee failed to establish proof of misbehavior or incapacity, Parliament cannot take up the motion. If the motion is passed by the originating House with the required majority. Upon being presented to the President in the same session of Parliament in which the address has been passed, the President, shall pass an order for the removal of the Judge in question. Thus, it is quite clear from proceedings that Supreme Court judges enjoy security of tenure, and the executive cannot arbitrarily remove them. So far, proceedings for removal were initiated only in one case against a judge of the Supreme Court. But he/she could not be removed because in the Lok Sabha he Congress Party abstained from voting and so the motion could not be passed with requisite majority.
Salary: The salary of the Chief Justice of India has been increased (effective from September 1, 2008) from 33,000 to Rupees One lakh per month while the salary of other apex court judges has been increased from Rs. 30,000 to Rs. 90,000 per month.
Oath: A person appointed as a Supreme Court Judge, before entering upon his office takes in the form prescribed an Oath or Affirmation before the President or some person appointed by him (Article 124 (6) ).
Seat of the Supreme Court: The SC shall sit in Delhi or, in such other place or places, as the Chief Justice of Indian may, with the approval of the President, from time to time appoint.
Appointment of acting Chief Justice (Article 126): When the Office of the Chief Justice of India is vacant or when the Chief Justice, by reason of absence or otherwise, is unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
Appointment of Ad hoc Judges (Article 127): If at any time there is a lack of quorum of the Judges of the Supreme Court to hold or continue any session in the Court, the Chief Justice of India may with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.
Attendance of retired Judges at sittings of the Supreme Court (Article 128): The Chief Justice of India with the previous consent of the President may request a retired Judges of the Supreme Court or Federal Court or a retired Judge of a High Court who is duly qualified to be appointed as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court. Such a judge is entitled to such allowances as the President may determine.