Judges: Appointment and Removal

    The Constitution which is the supreme law of the land provides for the division of powers between the Central and the State governments. It is the essence of the federal constitution that divides the powers between two governments. But the language of the Constitution is not free from ambiguities. Therefore, the meaning is interpreted differently by different authorities. Due to the distribution of powers, it is natural that disputes might arise between the centre and state regarding their respective powers. Hence, in order to maintain the supremacy of law of the land an independent and impartial authority is required to settle the disputes arising. The judicial body is the authority upon whom the function to settle the arisen disputes is entrusted. Here we’ll discuss about the qualification, appointment and removal of judges.

    QUALIFICATION OF JUDGES

    SUPREME COURT:

    According to Article 124(3), a person to be qualified for appointment as a judge of the Supreme Court must be :

    • Citizen of India.
    • Has been a judge of a High Court or of two or more such courts in succession, at least for five years, or
    • Has been an advocate of the High Court or of two or more such courts in succession, for ten years, or
    • Is a distinguished jurist in the President’s opinion.

    HIGH COURT:

    A person to be qualified for the appointment as a judge of the High Court must be:

    • Citizen of India.
    • Held a judicial office for at least ten years in India.
    • Have been an advocate of the High Court for at least ten years.

    COMPOSITION OF SUPREME COURT

    The supreme court of India, originally, consisted of Chief Justice and not more than seven other judges. But in 1978, it was increased to 17 excluding the chief justice. Further, in 1986 it was raised to twenty-five excluding the chief justice. But, in 2009 it again increased to thirty excluding the chief justice. Therefore, the total number of judges in the supreme court at present is 34 including the chief justice.

    APPOINTMENT OF JUDGES  

    PRIOR TO THE 99TH AMENDMENT OF THE CONSTITUTION

    The provisions with regards to appointment of judges of the supreme court before the 99th amendment of the Constitution are as follows:

    • The judges of the supreme court were appointed by the President. 
    • Under Article 124(2) the President is bound to consult the chief justice for appointing other judges of the supreme court but for appointing chief justice the President is not bound to consult anyone. 
    • Until 1973, the practice was to appoint the senior-most judge of the supreme court as the chief justice.
    • In 1956 the law commission disfavored this practice and recommended that in order to appoint the chief justice seniority should not be the main consideration but experience, administrative competence and merit should also be considered for appointment.
    • In 1973 this practice was suddenly broken by the government and three senior judges were superseded which was subject to severe criticism.

    According to Article 124, the President is required to consult but prior Supreme Court Advocates on Record Association v. Union of India[1] it had been interpreted that the President is not bound to act according to the consultation. In the Sankalchand Sheth case[2] it was held that the word consultation means full and effective consultation. This meaning of consultation was unanimously agreed by the supreme court in S. P. Gupta v. Union of India[3], also known as the Judge’s Transfer Case I. A nine-judge bench of the supreme court by a 7:2 majority overruled its prior judgment in the judge’s transfer case I and held that in the matter of appointment of Judges of the supreme court and the high courts the chief justice of India should have primacy. It said that the basis for the appointment of Chief Justice of India shall be seniority. It also laid down detailed guidelines in order to govern the process of appointment and transfer of the judges and held that the most important significance should be attached to the view of chief justice formed after considering the views of two senior-most judges of the supreme court[4].

    Appointment of Chief Justice of India

    According to the majority decision, the appointment of the chief justice of India should be done on the basis of seniority. Some important guidelines provided by the court are as follows:

    1. Individual initiation of high constitutional functionaries in the matter of judges appointments reduced to the minimum. The primacy is given to the chief justice of India but he must consult his two colleagues.
    2. Constitutional functionaries must work collectively in judicial appointments.
    3. The Chief justice of India has the final say in the transfer of chief justice and judges of high courts.
    4. Transfer of chief justice and judges of high courts cannot be challenged in courts.
    5. Appointment of chief justice of India on a seniority basis.
    6. The union cannot appoint any judge without consulting the chief justice.
    7. The fixation of the strength in high courts was justiciable. 

    Chief Justice: not the Sole Decision-Maker

    In 1998, a question had arisen whether the consultation needed to take place with collegium or whether the opinion of chief justice was enough. Another nine-judge bench set out the conclusive position in nine guidelines in the third judge’s case. The collegium was expanded to include the chief justice and four senior-most judges of the supreme court. It was concluded that the chief justice can recommend judges for the purpose of appointments after consulting with the other four judges and any candidate must be supported by the majority of the collegium.

    Recommendations of the Collegium 

    When the collegium recommends any candidate’s name to the president then the president has a choice to accept it or send it back for reconsideration. But in case the collegium recommends that same candidate for the appointment then in such circumstances the president is bound to accept the recommendation made by the collegium. The fixed position is that although the president performs the needed formalities the actual power rests with the collegium.

    National Judicial Appointment Commission 

    The judge’s case effectively took away the powers of the executive. So, in 1987 it was suggested to replace collegium with the national judicial commission. 

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    POSITION AFTER THE 99TH AMENDMENT OF THE CONSTITUTION

    In 2014, it successfully introduced and passed the 99th amendment of the Constitution and the National Judicial Appointment Commission Act, 2014. The Constitution amended Articles 124(2), 127, and 128. It also inserted articles 124A, 124B, and 124C. A six-member commission that would henceforth recommend candidates to the president. But the 99th amendment and National Judicial Appointment Commission Act were challenged in the supreme court. It was held by the majority of 4:1 that they were unconstitutional because they violated the basic structure of the Constitution. The National Judicial Appointment Commission system got abolished and the appointment continued as per the old collegium system.

    The memorandum of Procedure

    After the second and third judges’ case, a memorandum of procedure had been formulated to govern the process of how the collegium would make a recommendation to the executive. But there was no finalization of the centre regarding the memorandum of the procedure and therefore, the collegium continues to function as before.

    COMPOSITION OF THE HIGH COURTS

    The High Courts consist of the chief justice and also such other judges as the President may deem it necessary to appoint. Therefore, the constitution does not provide for any maximum number of judges of the High Courts.

    APPOINTMENT OF JUDGES 

    PRIOR TO THE 99TH AMENDMENT 

    According to article 217, the president is the one who appoints every judge of the high court. The president after consulting with the chief justice of India appoints the chief justice of a high court and along with that the governor of the state. If the appointment of a high court judge other than chief justice is done then he is required to consult the chief justice of that concerned high court.

    POSITION AFTER 99TH AMENDMENT

    After the amendment of the Constitution, the president shall appoint the judges of the high court through warrant under his hand and seal upon the recommendation of the National Judicial Appointment Commission referred to in Article 124A. Now, the Constitution does not require the consultation with the chief justice of India, the governor of the state, and in case of appointment of a judge other than the chief justice, the chief justice of the High Court. Since the Constitution 99th amendment has been declared unconstitutional and the position as it stood prior to this amendment stands revived[5]. The constitutional position prior to this amendment shall continue.

    REMOVAL  OF JUDGES 

    The judiciary is still empowered when it comes to the appointment of judges but it holds no power when it comes to the removal of judges. The president is empowered to remove the judges from the office only after receiving duly supported requests from Parliament. The supreme court has also formulated an in-house procedure for complainants against the judges of the supreme court and high courts which provides for inquiries to be set up by the chief justice. The chief justice may recommend the removal of judges to the president and prime minister but it’s not necessary for the impeachment process.

    IMPEACHMENT PROCESS

    The process of impeachment is provided under Article 124(4) of the Constitution. A judge can be removed only after proved misbehavior or incapacity[6]. The process of impeachment is as follows:

    1. The motion of impeachment against a judge must be raised in either house of the parliament. The speaker in the Lok Sabha or chairperson in Rajya Sabha admits that motion only if it has the required levels of support.
    2. A three-member committee is set up in order to investigate the allegation after the motion is admitted. The committee is basically composed of a supreme court judge, the chief justice of any high court, and a distinguished jurist nominated by the speaker or vice president.
    3. Thereafter, the committee prepares a report which is further submitted to the speaker or vice president who is required to share that with other houses.
    4. Then each house of parliament is required to pass an address to the president asking for the removal. In order to successfully remove the judge, it needs to be passed by ⅔ majority of MPs present in each house during the vote and must also exceed the 50% mark in each house.
    5. In case both addresses succeed then the president can remove the judge from his position by Presidential order.

    This same process applies to all judges of the supreme court and high court including the chief justice. But in India, no judge has ever been removed from office through the impeachment procedure.

    CONCLUSION

    The Courts are the final interpreter and guardian of the Constitution and the fundamental rights of the people. It maintains the supremacy of the law of the land. The courts safeguard civil and minority rights and play a vital role in the guardian of the social revolution. 

    References

    [1] (1993) 4 SCC 441.

    [2] Union of India v. Sankalchand Sheth, AIR 1977 SC 2328.

    [3] AIR 1982 SC 149.

    [4] Supra 1.

    [5] Supreme Court Advocate on Record Association v. Union of India, (2015) AIR SCW 5457.

    [6] K. Veeraswami v. Union of India, (1991) 3 SCC 655.


    BY RUMA MINJ | INDIAN INSTITUTE OF LEGAL STUDIES

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