- The Supreme Court of India is the Apex Court and is the final interpreter of the Constitution and the laws.
- The Court is also known as the guardian and the protector of the people’s Fundamental Rights. The Court is not only the Sentinel of the Fundamental Rights, but also, a balancing wheel between the Rights and il control.
Constitution of Supreme Court [Article 124 (1)]
There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law Prescribes a larger number, of not more than seven other Judges.
At the commencement of the Constitution, the Supreme Court consisted of a Chief Justice of India’ and not more than seven other Judges. Parliament is empowered to prescribe, by law, a large number of other Judges. In lieu of this power, Parliament enacted the Supreme Court (Number of judges) Act, 1956 for increasing the number of judges.
Appointment of Judges [Article 124 (2)]
Every Judge of the Supreme Court shall be appointed by the President by warrant executed under his hand and seal, after consultation with such judges of the Supreme Court and the High Courts of the States as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years.
Evolution of Collegium system
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.
Second Judge Case: 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.
Third Judges Case: 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.
|Appointment of Supreme Court Judge||Appointment of High Court Judge||Transfer of High Court Judge|
|4 senior-most judges of the Supreme court||2 senior-most judges of the Supreme court||4 senior-most judges of the Supreme court along with the judges of the two High Courts in concern.|
The Collegium system in India also called “Judges- selecting- Judges”, is the system by which the judges are appointed and transferred only by the judges. The system has evolved by means of the judgments of the Supreme Court, and not by an Act of Parliament or by a Constitutional provision.
Criticism of Collegium System:
- Lack of transparency
- Lack of accountability
- Lack of Diversity
- Potential for Corruption
The government through the 99th constitutional amendment wanted to replace the collegium with the NJAC. The NJAC comprised of CJI, 2 judges of SC, a central law minister, and 2 eminent experts nominated by collegium consisting of PM, CJI, LoP in Lok Sabha. A person would not be recommended by NJAC if any 2 of its members did not accept such a recommendation = making the appointment process more broad-based.
However, it was struck down by the Supreme Court in 2015 in the Fourth Judges Case. But due to the widespread criticisms against the collegium, the judgement promised to consider necessary measures to improve the collegium system. For this purpose, the SC required the government to submit the Memorandum of Procedure (MoP).
Memorandum of Procedure:
The MoP evolved based on three SC decisions – the First Judges Case (1981), Second Judges Case (1993), and the Third Judges Case (1998).
In 2016, the MoP re-negotiations took place following the Supreme Court’s decision to strike down the National Judicial Appointments Commission (NJAC).
- MoP starts with the recommendation of the High Court Collegium to the centre for the appointment of other judges. The Chief Justice of the High Court(HC) heads the collegium.
- Once the centre receives recommendations, it asks for the opinion of state governments and the input from the Intelligence Bureau (IB).
- The government then forwards the files, along with the IB inputs to the Supreme Court collegium.
- If the Supreme Court collegium clears the names, the files return to the central government. It then either notifies the appointments or sends them back with objections or its views.
- At this stage, the Supreme court collegium can seek additional inputs on the government’s opinion. Accordingly, it can either reject or reiterate the proposal.
- If the collegium reiterates its decision, then, under the MoP, the government is bound to notify the appointments.
- However, the MoP does not specify a timeframe for the central government to act on a collegium decision.
Measures to infuse transparency in Appointment:
- To make the Collegium system more transparent and accountable by making the reasons for the selection of judges public and by ensuring that the views of the public are taken into account in the selection process.
- Another option could be to establish an independent body, such as a Judicial Appointments Commission, to oversee the appointment and transfer of judges. This body could consist of judges, legal experts, and other stakeholders and could be responsible for ensuring that appointments and transfers are made on the basis of merit and not on the basis of political considerations.
- A third option could be to introduce a more participatory process for the appointment and transfer of judges, such as a system that involves the consultation of a wider range of stakeholders, including legal experts, civil society organisations, and members of the public.
- In the US, judges of the Federal Court are appointed by the President with the advice and consent of the Senate. The candidates are assessed by a committee of the American Bar Association and reviewed by the Senate Judiciary Committee before a vote in the Senate. There is no set retirement age for judges in the US as they continue to hold office for “good behaviour”.
- In the UK, it is the independent Judicial Appointments Commission (JAC) that oversees the process of judges’ appointments. The JAC consists of 15 members; three of these are judges, while 12 members are selected through a process of open competition.
Appointment of Chief Justice of India
SC Advocate on record association vs UOI: Appointment should be made on the basis of seniority and provision in Article 124(2) regarding consultation with other judge by the President is for in case of any doubt about the fitness of senior most judges.
5+1 collegium system:
- Generally, one or more of the four senior judges in the collegium would be a potential CJI candidate.
- The next in line is considered important to ensure continuity of decision-making
- But if the situation is such that the successor Chief Justice is not one of the four senior most puisne Judges, then he must invariably be made part of the collegium.
- Since, the Judges to be appointed will function during his term and it is his right that he should have a hand in their selection.
- However, in the two-year tenure of Justice Chandrachud as CJI, a potential CJI candidate is unlikely to be in the collegium until May 2023.
- Hence, Justice Khanna will be the sixth member of the collegium from November 9,2022 itself.
- The similar situation happened in 2007 when then CJI KG Balakrishnan took the top office, the collegium he headed did not have the potential CJI candidate.
- Justice SH Kapadia, who was next in line to be CJI, was invited to the collegium as the sixth member.
Qualification for Appointment as a Judge [Article 124 (3)]
- He should be citizen of India
- A person must either hold office as a High Court judge or of two or more High courts for a minimum of 5 years.
- He must be an advocate serving in the bar for a minimum of 10 years in High court or two more High courts in succession.
- He/she must be in the opinion of the President a distinguished jurist
- It follows that a person to be appointed a Judge of the Supreme Court must possess two qualifications. Firstly, he must be a citizen of India and secondly he must possess any of the qualifications mentioned in Clauses (b) to (d) above.
- Article 124 clause (6) provides that every person appointed to be a the Supreme Court, before he enters upon his office, shall make subscribe before the President, or some person appointed in that behalf an oath or affirmation, according to the form set out for the purpose he Third Schedule.
Tenure of Office [Article 124(2)]:
- It provides that a Judge of the Supreme Court shall hold office until he attains the age of 65 years.
- A Judge may, however, resign from his office by writing under his hand addressed to the President.
- Clause 2 A of Article 124 provides that the age of a judge of Supreme court shall be determined by such authority and in such manner as Parliament by law provides.
Removal of Judge [Article 124 (4)]
A judge of the Supreme Court may be removed from his office by an order of the President on the ground of proved misbehaviour or incapacity.
The order of the President can only be passed after he has been addressed to by both Houses of Parliament in the same Session the address must be supported by each House, by a majority of total membership of that House and also by a majority of not less than two-thirds of the members present and voting
Article 124 (5): The procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge, will be determined by Parliament by law. Parliament enacted the Judges (Inquiry) Act, 1968, in the exercise of the power conferred by Article 124(5). This Act and the Judges (Inquiry) Rules, 1969, made thereunder, provide for removal of a Judge on the ground of proved misbehaviour or incapacity.
Procedure for Removal of the Judge:
- Under the Act, an impeachment motion may originate in either House of Parliament. To initiate proceedings: (i) at least 100 members of Lok Sabha may give a signed notice to the Speaker, or (ii) at least 50 members of Rajya Sabha may give a signed notice to the Chairman. The Speaker or Chairman may consult individuals and examine relevant material related to the notice. Based on this, he or she may decide to either admit the motion or refuse to admit it.
- If the motion is admitted, the Speaker or Chairman (who receives it) will constitute a three-member committee to investigate the complaint. It will comprise: (i) a Supreme Court judge; (ii) Chief Justice of a High Court; and (iii) a distinguished jurist. The committee will frame charges based on which the investigation will be conducted. A copy of the charges will be forwarded to the judge who can present a written defence.
- After concluding its investigation, the Committee will submit its report to the Speaker or Chairman, who will then lay the report before the relevant House of Parliament. If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated.
- The motion for removal is required to be adopted by each House of Parliament by: (i) a majority of the total membership of that House; and (ii) a majority of at least two-thirds of the members of that House present and voting. If the motion is adopted by this majority, the motion will be sent to the other House for adoption.
- Once the motion is adopted in both Houses, it is sent to the President, who will issue an order for the removal of the judge.
K. Veeraswami v. Union of India,” the Supreme Court, by majority of 4 to 1, held that a Judge of the Supreme Court and of a High Court, could be prosecuted and convicted for criminal misconduct. The Court said that the expression misbehaviour in Article 124 (5) included criminal conduct defined in the Prevention of Corruption Act.
The Court held that the Constitution did not permit any other forum to inquire into or discuss the conduct of a Judge or the performance of his duties and on-off Court behaviour except as per the procedure contained in Article 124 (4) and (5) and Acts and the Rules. Thereby, no other authority or agency like the CBI, Ministry of Finance, RBI would investigate into the conduct or acts or actions of a judge.
Salaries and Allowance [Article 125]:
- Article 125 (1) empowers Parliament to determine the salary to be paid to the Judges of the Supreme Court.
- The High Court and Supreme Court Judges (Conditions of Service Amendment Act) determines the salary. Every Judge of the Supreme Court shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may, from time to time, be determined by or under law made by Parliament.
- The privileges, allowances or other rights of a Judge of the Supreme Court, shall not be varied to his appointment.
- The salaries of the Supreme Court judge are taxable under Income tax act 1961.
Seat of the Supreme Court (Article 130)
The Constitution declares Delhi as the seat of the Supreme Court. But it also authorises the Chief Justice of India to appoint other place or places as seat of the Supreme Court. He can take decisions in this regard only with the approval of the President. This provision is only optional and not compulsory.
This means that no court can give any direction either to the President or to the Chief Justice to appoint any other place as a seat of the Supreme Court.
Idea of National Court of Appeal
Currently, all appeals must be heard in New Delhi, which is inconvenient for cases originating elsewhere in the country. In the Bihar Legal Support Society vs Chief Justice of India, a five-judge bench of the Supreme Court considered the establishment of the NCA “very desirable” and stated that the current highest court should only hear cases involving constitutional and public law issues.
The National Court Appeal, which has regional benches in Chennai, Mumbai, and Kolkata, is tasked with hearing appeals from High Court and tribunal decisions in civil, criminal, labour, and tax matters under its jurisdiction.
In such a scenario, the Supreme Court of India, which is currently based in Delhi, would only hear constitutional and public law cases.
- The Supreme Court was created with the intention of being a Constitutional Court. The court’s case backlog, on the other hand, leaves it with little time to perform its basic tasks.
- The Supreme Court will keep its position as the highest court in the land, ruling exclusively on matters of constitutional importance or setting new legal precedent, as it does in England, Wales, and the United States.
- The Court will be able to devote more time to developing the law as a result of this.
- Different benches to hear appeals will make sense from a geographical standpoint.
- It will only add another layer of decision-making.
- The establishment of the NCA will raise the burden on the government’s budget.
- The Supreme Court’s aura as an apex court may be diluted, which may not be consistent with the concept of the Supreme Court envisioned by the Constitution’s architects.
- It is unconstitutional because the hearing of appeals is a fundamental structure.
- This proposition would necessitate a change to Article 130 of the Constitution, which is unconstitutional because it would fundamentally alter the Supreme Court’s constitution
Mr. Vasanthakumar’s (Chennai based Lawyer) proposal for a National Court of Appeal with regional Benches was rejected by the Centre in 2014. The Attorney-General has stated that an NCA would “completely change the constitution of the Supreme Court.” In March 2016, the Supreme Court established a Constitution Bench to debate the possibility of an NCA.
Acting Chief Justice (Article 126)
When the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
Adhoc Judges (Article 127):
- When there is a lack of quorum, the CJI can appoint a judge of high court to the SC bench
- Such a step can be taken only with the prior permission of the President and consultation with the CJ of the concerned high court
- While performing this duty, the newly appointed judge receives the salary, powers and privileges of a judge of the SC
Retired judges (Article 128):
- CJI can request a retired judge of the SC or retired judge of the HC to act as a judge of the SC for a temporary period
- He can take this step after getting consent from the President of India and also of the person to be so appointed
- The appointed person in this case will receive such salary and allowances as determined by the President of India.