Appointment, removal and contemporary developments in JUDICIARY

Provisions in regard to the judiciary in India are contained in Part V (”The Union‟) under Chapter IV titled “The Union Judiciary‟ and Part VI (”The States‟) under Chapter VI titled ”Subordinate Courts‟ respectively.

THE SUPREME COURT ( ARTICLES 124-147)

The Supreme Court and the High Courts as the custodians and watchdog of the fundamental rights and freedoms of the people and their constitutional rights have an awesome responsibility. The Superior Judiciary has successfully preserved and protected the fundamental rights of the citizens and vulnerable groups against the innovations of “an excited democracy” and for that purpose, it has drawn substantially upon the Directive Principles.

Article 124 vests the power of appointment of the Chief Justice of India (C.J.I.) and the Judges of the Supreme Court in the President. The President shall by warrant, make the appointment after consultation with such of the judges of the Supreme Court and the High Courts of the States, as he may deem necessary. Also, the provision speaks of „after‟ consultation and not „in‟ consultation. In the case of appointment of a judge other than the Chief Justice of India, the C.J.I. shall always be consulted.

On a plain reading of the provision, the power of appointment vests in the President. The President, of course, means the Executive i.e. The President acting on the advice of Council of Ministers. The C.J.I. and other such judges of the Supreme Court and the High Courts shall be consulted by the President, as he may deem necessary.

The appointment of judges of the High Courts is also made by the President (Executive). The President has to consult the C.J.I., the Governor of the State and the Chief Justice of the High Court.

Composition

The Supreme Court of India consists of a chief Justice.
and not more than seven other judges.
Parliament may by law increase this number, by law.
At least five judges bench is required to decide a case involving a substantial question of law as to the interpretation of the Constitution and for hearing a reference by the President under Art. 143.

Appointment

Chief Justice of India (C.J.I.) and the Judges of the Supreme Court are appointed by the President of India after consultation with such judges of the Supreme Court and the High Courts of States as the President may deem necessary for the purpose.
Under Article 124(2), the President in appointing other judges of the Supreme Court is bound to consult the Chief Justice of India.
He may consult such other judged of the Supreme Court and High Courts as he may deem necessary.

Qualifications

To be a judge of the Supreme Court, one must be:

a citizen of India
has been a judge of a High Court at least for five years; or
has been an advocate of a High Court for at least ten years
Is a distinguished jurist in the opinion of the President.

Tenure

A judge of the Supreme Court retires at the age of 65 years. He may also resign from his office.

Removal of Judges

The question regarding the removal of a judge before the age of superannuation is an important one as it can have a significant bearing on the independence of Judiciary. The Constitution of India also makes a provision for the removal of a Supreme Court judge.

For deviant behaviour

A committee comprising the Chief Justice of India and two senior-most Judges of the Supreme Court shall be exclusively empowered to examine complaints of deviant behaviour of all kinds and complaints of misbehaviour and incapacity against judges of The Supreme Court and the High Courts.
Their scrutiny at this stage would be confined to ascertain whether – (a) there is substance at all in the complaint; or (b) there is a prima facie case calling for a fuller investigation and enquiry; or (c) whether it would be sufficient to administer an appropriate advice/warning to the erring Judge or give other directions to the concerned Chief Justice regarding allotment of work to such Judge or to transfer him to some other court.
If, however, the committee finds that the matter is serious enough to call for a fuller investigation or inquiry, it shall refer the matter for a full inquiry to the committee [constituted under the Judges‟ (Inquiry) Act, 1968].
The tenure of the inquiry committee shall be for a period of four years and to be reconstituted every four years. The inquiry committee shall be constituted by the President in consultation with the Chief Justice of India.
The Committee of seven Judges shall take a decision as to – whether
1. findings of the inquiry committee are proper and
2. any charge or charges are established against the judge and if so, whether the charges held proved are so serious as to call for his removal (i.e. proved misbehaviour) or
3. whether it should be sufficient to administer a warning to him and/or make other directions with respect to allotment of work to him by the concerned Chief Justice or to transfer him to some other court (i.e. deviant behaviour not amounting to misbehaviour).
If the decision of the said committee of judges recommends the removal of the Judge, it shall be a convention that the judge promptly demits office himself. If he fails to do so, the matter will be processed for being placed before Parliament in accordance with articles 124(4) and 217(1) Proviso (b).
This procedure shall equally apply in case of Judges of the Supreme Court and the High Courts except that in the case of a Supreme Court Judge the judge against whom complaint is received or inquiry is ordered, shall not participate in any proceeding affecting him.
It shall also be proper, in appropriate cases, for the Chief Justice of the High Court or the Chief Justice of India, to withhold judicial work from the judge concerned after the inquiry committee records a finding against the judge.

Age of Retirement of Judges of the Supreme Court and the High Courts

The Commission recommends that the retirement age of the Judges of the High Court be increased to 65 years and that of the Judges of the Supreme Court be increased to 68 years.
The Commission recommends that in the matter of transfer of Judges, it should be as a matter of policy and the power under article 222 and its exercise in appropriate cases should remain untouched. The President would transfer a Judge from one High Court to any other High Court after consultation with a committee comprising the Chief Justice of India and the two senior-most Judges of the Supreme Court.

Timeline for changes in the appointment procedures

After independence, India adopted the Constitution in 1950. According to the Constitution, up to 1973, the President appointed the Chief Justice of India and remaining judges of the Supreme Court in consultation with the CJI and other judges as he deemed necessary.

1. Appointment of CJI 1950-1973

Until 1973, there existed a consensus between the Government of the day and the Chief Justice of India.
A convention was formed where the senior-most judge of the Supreme Court was to be appointed as the Chief Justice of India.
In 1973, A.N.Ray was appointed as the Chief Justice of India. This violated the convention formed earlier since Justice A.N.Ray superseded three other Supreme Court judges senior to him.
Again in 1977, another chief justice was appointed who superseded his seniors.
This resulted in a clash between the Executive and the Judiciary.

2. First judges case, 1982

A petition was filed in 1982 in the Supreme Court of India.
This case is known as the S.P.Gupta Case or First Judges case.
The Supreme Court discussed 2 major points during the proceedings of this case
When asked the Supreme Court of India whether the word “consultation” in the constitutional article 124 mean “concurrence”; the Supreme court overruled this and denied saying that Consultation does not mean concurrence. The President was not bound to make a decision based on the consultation of the Supreme Court.
Another important point in the discussion, in this case, was the part where the Supreme Court decided that a High Court Judge can be transferred to any other high court of a state even against his will.

3. Second judges case,1993

Another petition was filed in 1993 by the Supreme Court Advocates on Record Association (SCARA).
In this case, the Supreme court overruled its earlier verdict and changed the meaning of consultation to concurrence. Thus binding the President of India with the consultations of the Chief justice of India.
This resulted in the birth of the Collegium System.

4. Third Judges Case, 1998

In the year 1998, the presidential reference to the Supreme court was issued questioning the meaning of the word consultation in articles 124, 217, and 222 of the Constitution.
The chief justice won’t be the only one as a part of the consultation process. Consultation would include a collegium of 4 senior-most judges of the Supreme court. Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government.

The gist of the Third Judges case:

In the verdict, the Supreme Court laid down strict guidelines for the appointment of Judges of the Supreme Court and high courts which is currently known as the Collegium System.

5. Collegium System

In this system of appointment of Judges, the collegium will recommend the names of the candidates to the Central Government.
Also, the central government will send the names of the proposed candidates for consultation.
The appointment process takes a long time since there isn’t a fixed time limit for it. If the Collegium resends the same name again then the government has to give its assent to the names.

The Collegium System faced a lot of criticism not only from the government but also from civil society due to its Lack of Transparency and Accountability.

This led to the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act (NJAC) to replace the collegium system for the appointment of judges.

6. National Judicial Appointment Commission Act, 2014

The 1993 judgment was the basis on which a five-judge Constitution Bench declared the National Judicial Appointments Commission Act (NJAC) and the Constitutional (Ninety-Nine Amendment) Act, 2014 unconstitutional in October 2015.
NJAC too would recommend names for the Appointment of Supreme Court Judge and Appointment and Transfer of High Court Judge
Composition of NJAC
1. The Chief Justice of India
2. 2 senior-most judges of the Supreme Court
3. The Law Minister of India
4. 2 eminent members that are chosen by the Selection Committee

National Judicial Appointments Commission – NJAC

The aspirants should note that NJAC was established to achieve greater transparency and accountability for the appointment of judges. But it was struck down by the Supreme Court on the grounds that it was against the “Independence of Judiciary” i.e Principles of Basic Structure since it involved the Political Executive in the appointment of Judges.

The current system of appointment of SC judges

In judicial appointments, it is obligatory for the President to take into account the opinion of the CJI.
The opinion of the CJI is binding on the Government. The opinion of the CJI must be formed after due consultation with a collegium of at least four senior-most judges of the Supreme Court.
Even if two judges give an adverse opinion, then he should not send the recommendation to the Government.