Of all the organs of the government, the role of judiciary as the third organ is most important. The test of a democratic polity depends, as Bryce had once remarked, on the functioning of the judiciary. The President of India had pointed out, saying:
The judiciary in India has become the last refuge for the people and the future of the country will depend upon the fulfilment of the high expectations reposed by the people in it.
The Supreme Court of India
Chapter IV of Part V (Articles 124 to 147) of the Constitution is related to the Union judiciary which includes the Supreme Court of India, and the High Courts as well as the lower courts. Indian Polity and Governance?103 Article 124 of the Constitution explains that there shall be a Supreme Court of India consisting of the Chief Justice and other judges whose number is prescribed by the Parliament through law enacted from time to time. In 1950, the Supreme Court of India had one Chief Justice and seven judges.
The number of judges increased to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2009. Thus, the Supreme Court, at present, consists of one Chief Justice and 30 judges. Each judge, including the Chief Justice, has a tenure until he attains the age of sixty-five years. He can either resign earlier or can be removed as per clause 4(a) of Article 124 which reads:
The 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-thirds of the members of that House present and voting, has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
The Judges Enquiry Act (1965) regulates the procedure relating to the removal of a judge of the Supreme Court and the procedure is:
- A motion of removal needs to be signed by 100 members of the Lok Sabha or 50 members of the Rajya Sabha and that motion be given to the Speaker/Chairman.
- The Speaker/Chairman may admit the motion or may refuse to admit it.
- If the motion is admitted, then the Speaker/Chairman constitutes a three-member committee to investigate into the charges levelled.
- The committee consists of the Chief Justice or a judge of the Supreme Court, a Chief Justice of a High Court and a distinguished jurist.
- If the committee finds the judge guilty of misbehaviour or one, suffering from incapacity, the House can take up the consideration of the motion.
- After the motion is passed by each House of the Parliament by special majority, the address is presented to the President for removal of the judge. Special majority means two-thirds of the members present and voting and which must have a simple majority of the total membership of each House.
- The President then passes an order removing the judge. No Supreme Court judge has been impeached so far. The impeachment against Justice V. Ramaswami of the Supreme Court (1991’93), was moved but dropped.
According to clause 3 of this Article 124, the qualifications for the appointment of a judge are:
(a) He/She should be a citizen of India,
(b) has been, for at least five years, a Judge of a High Court or of two or more such courts in succession; or
(c) has been, for at least ten years, an advocate of a High Court of two or more such courts in succession; or
(d) is, in the opinion of the President, a distinguished jurist. The judges of the Supreme Court are paid salaries and allowances and are entitled to such privileges as determined by Parliament by law passed from time to time (Article 125).
The Supreme Court came into being on January 28,1950; and its inauguration took place in the Chamber of Princes in the Parliament. Over the years, the appointment of judges has become an issue of importance. The Chief Justice is appointed by the President after consulting the judges of the Supreme Court and High Courts as he deems necessary. The President after consultation with the Chief Justice, appoints the other judges of the Supreme Court and High Courts. What has become an issue is the word consultation and its implications. The Supreme Court has, itself, interpreted the word consultation. In the first Judges case (1982), consultation meant exchange of views and not concurrence [see S.P. Gupta v Union of India, 1982; also Union of India v Sankal Chand Seth (1977)] but in the second judges case (1993), the Supreme Court held that the word consultation means concurrence and that the advice given by the Chief Justice is binding on the President on matters regarding the appointment of judges of the Supreme Court, making it clear that the Chief Justice while giving advice to the President would consult two of his senior most colleagues.
In the third judges case (1998), the Supreme Court held the view that the consultation process adopted by the Chief Justice would require consultation of plurality judges i.e., the Chief Justice needs to consult a collegium of four senior most judges of the Supreme Court, and if two of them give an adverse opinion, the Chief Justice need not send his views to the government. However, the recommendations of the Chief Justice have to go to the President in writing. An amendment of the Constitution is though passed by the two Houses of Parliament pending with States approval. If half of the states ratify the amendment, the existing appointing collegium would be replaced by a six-member commission, headed by the Chief Justice of India who would decide on Judges appointments and transfers. The six members would be: one Chief Justice of India, two other senior judges of the Supreme Court of India next to the Chief Justice, Union Law and Justice Minister, two eminent persons to be nominated by a committee consisting of the Prime Minister, Chief Justice of India and leader of opposition party in the Lok Sabha. The collegium however stays. The historic decision of the Supreme Court on October 16, 2015, held this amendment as invalid.
