The Supreme Court of India has recently seen the swearing-in of two new judges, Justice Prashant Kumar Mishra, and Justice K.V. Viswanathan, administered by Chief Justice of India DY Chandrachud. With their joining, the court now operates with its sanctioned strength of 34 judges.
Understanding the Appointment Process of Supreme Court Judges
The Supreme Court was originally comprised of eight judges. However, the Parliament has increased the number over time. Presently, the Supreme Court holds 34 judges, including one chief justice and 33 others.
According to Article 124(3) of the Constitution, a person, who is a citizen of India can be appointed as a judge of the Supreme Court if they possess certain qualifications. These include serving as a judge of a High Court for at least five years or working as an advocate of a High Court for at least ten years. They could also be a distinguished jurist in the President’s opinion.
Appointment of the judges is carried out 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 carry out these appointments. The appointed judge then takes an oath before the President or a person assigned by them. The oath encompasses their commitment to upholding the Constitution, sovereignty, and integrity of India, and performing their duties without fear or favor.
Judge Tenure, Resignation, and Post-retirement Restrictions
A judge of the Supreme Court serves until the age of 65 years. There is no prescribed minimum age limit set for a judge’s appointment. However, a judge may choose to resign before reaching the age of 65 by tendering their resignation to the President.
In terms of earnings, the Parliament determines the salaries, allowances, privileges, leave, and pension of Supreme Court judges. All these are charged upon the Consolidated Fund of India. After retirement, a judge of the Supreme Court is forbidden from practicing law in any Indian court or pleading before any government authority.
However, according to Article 128 of the Indian Constitution, any retired judge of the Supreme Court 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.
Removal of a Judge
The removal of a Supreme Court judge requires an order of the President. This process includes an address by each House of Parliament, backed 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 reasons for removal include proven misbehaviour or incapacity. Parliament has the authority to regulate the procedure for presenting such an address and investigating the grounds for removal.
Collegium System for Judicial Appointments
The appointment of judges in the higher judiciary is executed through the collegium system. This group, composed of the Chief Justice of India and the four senior-most judges of the Supreme Court, makes decisions regarding appointments, elevations, and transfers of Judges.
Evolution of the Collegium System
The first Judges Case in 1981 stated that the “primacy” of the CJI’s recommendation on appointments and transfers could be refused for “cogent reasons,” giving the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
In the second Judges Case of 1993, the Supreme Court introduced the Collegium system, and the term “consultation” was interpreted as “concurrence”. It was clarified that this was not the individual opinion of the CJI, but an institutional opinion formed in consultation with two senior-most judges in the Supreme Court.
In 1998’s third Judges Case, the Collegium expanded to a five-member body, comprising the CJI and four of his senior-most colleagues. In the fourth Judges case (2015), both the 99th Constitutional Amendment as well as the NJAC Act were declared unconstitutional and void. This led to the re-establishment of the earlier collegium system for judicial appointments.
