Appointment And Removal Of Judge Of Supreme Court Of India
The Supreme Court is the apex judicial body in India. The Supreme Court is protector of the Fundamental Rights of citizens. The Supreme Court has original jurisdiction to determine disputes between Centre and State. The Supreme Court has various appellate jurisdiction also. The Supreme Court has power to review legislations passed by Parliament.
Article 124 provides for Supreme Court of India. Supreme Court consist of Chief Justice of India and 33 other judges. Constitution has empowered Parliament to prescribe the number of judges of the Supreme Court.
How a Judge of the Supreme Court is appointed ?
Article 124 (2) provides for procedure of appointment of judges of the Supreme Court.
President has the power to appoint judges. The Constitution provides that President will appoint judges of the Supreme Court after consulting Chief Justice and such other judges of the Supreme Court and High Court as he deems necessary.
Constitution does not provide for detailed procedure of appointment of judges of the Supreme Court. A convention had developed that seniormost judge will be appointed as Chief Justice and other judges will be appointed on the recommendation of the Chief Justice. But this was not followed when Justice A N Ray was appointed Chief Justice superseding three senior judges of the Supreme Court in 1973.
S.P. Gupta Vs Union of India ( First Judges Case )
The Supreme Court in S. P. Gupta vs. Union of India (1981 Supp SCC87) has held that “consultation” in Article 124 does not mean “concurrence”. President was not bound to make a decision based on consultation of Supreme Court. The Supreme Court also recommended for collegium system for appointment of judges.
Supreme Court Advocate on Record Association Vs Union of India (Second Judges Case )
The Supreme Court in Supreme Court Advocate on Record Association Vs. Union of India (1993) 4 SCC 441 overruled S. P. Gupta Vs. Union of India. It was held that in the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary symbolised by the view of the Chief Justice of India and formed in the manner indicated, has primacy. No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.
Special Reference 1 of 1998 (Third Judges Case )
President K R Narayanan under Article 143 of the Constitution sought clarity from the Supreme Court in Special Reference 1 of 1998. The Supreme Court opined that the expression “consultation with the Chief justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said Articles. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two seniormost puisne Judges of the Supreme Court.
What was National Judicial Appointment Commission Act, 2014 ?
Parliament passed 99th Amendment Act and National Judicial Appointment Commission Act, 2014 to provide for National Judicial Appointment Commission for appointment of judges. National Judicial Appointment Commission was to consist of Chief Justice of India, two seniormost judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons. Two eminent persons were to be nominated by a committee consisting of Chief Justice of India, the Prime Minister and Leader of Opposition Party of the Lok Sabha.
Advocate on Record Association Vs. Union of India (Fourth Judges Case )
99th Amendment was challenged before the Supreme Court in Advocate on Record Association Vs. Union of India. The Supreme Court held that the Amendment does not provide adequate representation to judicial component of the National Judicial Appointment Commission and hence violates independence of judiciary. 99th amendment was struck down and old collegium system was revived.
What are qualifications for becoming a judge of the Supreme Court ?
A person will be eligible to be appointed as Judge of the Supreme Court if such person fulfils following qualifications:
- Such person is citizen of India
- Such person has been judge of High Court for five years or two or more courts in succession
- Such person has been for at least 10 years an advocate of High Court or of two or more such courts in succession
- Such person is in the opinion of the President, distinguished jurist
How a judge of the Supreme Court can be removed ?
A judge of Supreme Court can resign by writing under his hand to the President.
A judge can be removed only on the ground of proved misbehavior or incapacity. The manner of removal on ground of proved misbehavior or incapacity has been provided under Article 124 (4). The President can remove a judge of the Supreme Court after both houses of parliament passed resolution or removal of judge by majority of total member of each house and 2/3rd of members present and voting.
Can a Judge of the Supreme Court practice after retirement ?
A person who has held office of Judge of Supreme Court cannot plead or appear before any court or authority before India.
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Mukesh Kumar Suman is an advocate based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.
