Appointment of Supreme Court Judge Under the Constitution of India
Article 123 – of the constitution
of India describes the process for appointment and removal of judges of the Supreme
Court. The currently sanctioned strength of the court is 30 judges (CJI+30).
According
to Article 124(3), the following people can become s supreme court judge:
1- High court judge who
held the post for five years or longer.
2- An advocate who has practiced in a High Court
or Supreme Court for ten years or longer.
3-A distinguished jurist-
technically this could include a scholar, though no judge has ever been
appointed on this basis.
The general rule of
thumb is that senior most judge of existing High Court should be considered for elevation
to the Supreme Court's Judge vacancy. However, where a judge has demonstrated exceptional
ability or character, the order of superiority can be supe rseded. The reasons
behind that judge being appointed need to be recorded in such cases.
Who appointed the
judges of Supreme Court?
Under the Article 123,
the judges of the Supreme Court are to be appointed by the president of India. However,
unlike the procedure followed in other countries, such as the USA, the appointment
of Supreme Court judges in India happens with involvement of the judiciary. Article
124 (2) says that the president shall appoint the judges.
After consultation
with such of the judges of the Supreme Court for chief justice of India as the president may deem necessary for the purpose. For the appointment of
any judge of the supreme court apart from the CJI, the article also says that
the chief justice of India must be consulted.
Meaning of the “consultation” and role of
the collegium in Appointments
Initially the fact
that Article 124 only required a “consultation” with four senior most judges and the Chief Justice of India , meant that the central government had the final say,
and could reject the views of the judges when it came to decide who would be appointed
to the top court.
Chief justice NOT Decision
– Maker
The collegium was expanded
to include the CJI and the next four (up from two) senior- most judges. It was
concluded that the CJI could only recommend judges for appointment after consultation
with the other four judges, and any candidate must be supported by most of the
collegium.
Collegium’s Recommendation
Binding
Once the collegium
makes recommendation to the president, the president can either accept it or
send it back to the collegium for reconsideration. If the collegium once again
recommends that candidate for appointment, the president is bound by the recommendation.
The final position is
thus that even though the formalities need to be performed by the president, the
actual decision- making power when it comes to appointment of supreme court judges’
rests with the collegium.
Removal of Supreme Court
Judges: Impeachment
While the judiciary
still holds the cards when it comes to appointment of judges, they do not have to
say when comes to the removal of judges. The power to remove judges from their
office rests with the president, who can only do so after receiving duly
supported requests from parliament.
The Supreme Court has
formulated an ‘in-house procedure’ for complaints against judges of the high
courts of Supreme Court (though not the CJI himself), which provides for
inquiries to be set up by the CJI. The CJI can recommend the removal of a judge
to the President and Prime Minister, BUT this is not prerequisite for the
impeachment process.
The process of impeachment
is described in Article 124(4) of the constitution and The Judges (inquiry) Act
1968. A judge can be removed on the ground of “proved misbehavior nor incapacity
are defined but would include any criminal activity or other judicial
impropriety.
the steps are as follows:
1- An impeachment motion
against the needs to be raised in either of the House of Parliament. The motion
can only be admitted by the speaker in the Lok Sabha or chairperson (by
default, the Vice-President) in Rajya Sabha if it has the required levels of
support: 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha.
2- If the motion is
admitted, a three-member committee is set up to investigate the allegations. The
committee is made up of a Supreme Court Judge, the Chief Justice of any High
Court, and a ‘distinguished jurist’ (read judge/lawyer/scholar) nominated
by the speaker/vice-President.
3- Once the committee
prepares its report, this must be submitted to the Speaker/vice president, who then
also shares it with the other house.
4- Both Houses of Parliament
then need to pass an ‘address to the President’ asking for the judge to be
removed. To succeed, this needs to be passed by a 2/3 majority of the MPs
present in each house during the vote, and the must also exceed the 50 percent
mark in EACH HOUSE.
5- If both addresses succeed,
then the President can remove the judge from his position by Presidential Order
The same
process applies for all judges of the High Courts or the Supreme Court- Including
the Chief justice of India
