Appointment and Tenure of Supreme Court Judges

This article deals with the Constitutional framework for the appointment of judges in India. The first framework consists of a ‘consultative process’ between the Chief and therefore the Judiciary. For the primary four decades, after the framing of the Constitution, this practice was followed decently with few controversies. But after the Second Judges Case in 1993, the Supreme Court has done away with the prevailing consultative process and evolved a new system for appointment of judges within the higher Judiciary, namely “Collegium”. During this system, a panel of Chief Justice of India together with two senior-most Judges of the Supreme Court (in Third Judges Case this number was increased from two to four senior-most judges) recommends the appointment of a judge. But the recent episodes are revealing the incompetency and irregularity of the collegium system. The Law Commission of India, in its 214th Report, has also shown deep concern on the working of the collegium system and recommended for reconsideration.

Introduction

The controversy over the proposed elevation of Justice P.D. Dinakaran of the Karnataka High Court to the Supreme Court by the collegium of the Chief Justice and four senior-most judges of the Supreme Court and the criticism of overlooking of apparently suitable judges by the collegium has brought into focus the current method of selection of judges of the Supreme Court and High Courts by the Supreme Court collegium.

The method of selection of judges by a collegium of Supreme Court judges is nowhere mentioned within the Constitution. The Constitution provides the power of appointment of judges to the President of India to be made in consultation with the Chief Justice of India and other judges of the Supreme Court and therefore the High Courts.

The collegium method was created as a result of two judgments of the Supreme Court, first in 1993 (Supreme Court Advocate-on-Record Association case), and by a follow-up President’s Reference to the Court in 1998. With the simplest of intentions of securing the independence of the judiciary, the Supreme Court rewrote the provisions of the Constitution for the appointment of judges and appropriated the facility to appoint judges by the present judges. By the primary case, the ability was vested within the Chief Justice of India in whom it was held the primacy lay in appointments assisted by two judges of the Supreme Court. The second case the court took away the absolutely the decision-making power from the Chief Justice of India and vested it cumulatively to the collegium of the Chief Justice of India and four senior-most judges of the Supreme Court.

The intentions of the Constituent Assembly on making constitutional decisions regarding not giving the Chief Justice of India, the final authority, was disregarded. Lately, the Chief Justice of India and the collegium became the initiator and appointer of judges, and the President of India was made only a formal approver within the process of selecting the judges. These judgments are prime examples of overreaching by the Supreme Court. Indeed, in the second judgment of 1998, the Court went to the extent of extracting an announcement from the government that it was not seeking a reconsideration of its earlier judgment of 1993, and the government would also accept and binding the judgment it was delivered.

What is the tenure of Supreme Court (SC) judges?[1]

The Constitution has not fixed the tenure of a judge of the Supreme Court. However, it makes the subsequent three provisions during this regard:

He holds office until he attains the age of 65 years. Any question regarding his age is to be determined by such authority and in such manner as provided by Parliament.
He can resign from his post by writing to the President.
He can be removed from his office by the President on the recommendation of the Parliament.

What is the eligibility to become a Supreme Court judge?[2]

To become a judge of the Supreme court, an individual should be an Indian citizen. In terms of age, a person should not exceed 65 years of age. The article further laid out, that, to become a judge a Supreme Court a person should serve as a judge of a High Court or more (continuously), for at least five years or the person should be an advocate in the High court or the Supreme court for a minimum of 10 years or a distinguished jurist.

What are the qualifications of the Supreme Court Judges?[3]

A person to be appointed as a judge of the Supreme Court should have the following qualifications:

He should be a citizen of India; and
He should have been a judge of a HighCourt (or high courts in succession) for five years; or
He should have been an advocate of a High Court (or High Courts in succession) for ten years; or
He should be distinguished within the jurist in the opinion of the president.
The Constitution has not prescribed minimum age for appointment as a judge of the Supreme Court.

How are Supreme Court Judges appointed?[4]

According to the Constitution of India, the subsequent are the regulations for the appointment of the judge of Supreme court-

Every Judge of the Supreme Court shall be appointed by the President by warrant under his/her hand and seal after consultation with Chief Justice of India and by extension to, 2 more most-senior judges other than Chief Justice, and also the same applies to for the High Court within the states because the President may find necessary for this purpose. Every judge of the Supreme Court can hold his/her office until he/she attains the age of 65.
After 1993 the court realized the recommendations of Chief justice in the appointment of judges are a necessity. However, the President isn’t bound to consult anyone, this can be to extend the effectiveness.
Chief Justice of India and his closed group is the sole authority to initiate the process of appointment of Judges of the Supreme Court. Just in case of conflict of opinion between Chief Justice of India and President, the view expressed by CJI will have a primary.
In July 1998, the President sought the court’s opinion on core issues relating to the appointment of Supreme Court Judges and the transfer of High Court Judges.
The 11th Presidential Reference sought clarification on certain doubts over the consultation process to be adopted by the Chief Justice of India as stipulated in the 1993 case referring to judges’ appointment and transfer opinion.

The crux is as follows:

In judicial appointments, the President is obligated to account for the opinions of the Chief Justice of India.
- The opinion of the Chief Justice of India is binding on the Government. The opinion of the Chief Justice of India must be formed after due consultation with a collegium with a minimum of four senior-most judges of the Supreme Court.
- If even two judges don’t seem to be in favor of the opinion, then he shouldn’t send the advice to the Government.

What is the selection procedure of the Chief Justice of India (CJI)?

The senior-most judge of the Supreme court is mostly considered for holding the office of the Chief Justice of India. When the current Chief Justice of India is about to retire, the Ministry of Law, Justice and Company affairs ask Chief Justice of India for his advice to appoint the next Chief Justice of India. After receiving the advice of the Chief Justice of India, the Ministry of Law, Justice and Company affairs forward this information to the Prime Minister who will further move the proposal to the President for final approval.

What is the procedure for an appointment?[5]

The Chief Justice of India (CJI) and the other judges of the highest judiciary are appointed by the President of India under Article 124(2) of the Constitution.

What is the role and composition of the collegium?[6]

The Supreme Court collegium consists of the four senior-most judges excluding the Chief Justice of India. The collegium of the five judges is chargeable for a significant role within the Indian judiciary which incorporates the appointment and transfer of the judges of the High Court and also the appointment of the Supreme Court judges.

What is the Collegium System?[7]

The Collegium System is a system under which appointments/elevation of judges/lawyers to the Supreme Court and, transfers of judges of High Courts and Supreme Court, are decided by a forum of the Chief Justice of India and therefore the four senior-most judges of the Supreme Court. There is no mention of the Collegium either within the original Constitution of India or in successive amendments. The Collegiums System of appointment of judges was born through “three judges case” which interpreted constitutional articles on October 28, 1998.

What is the selection procedure of other judges in the Supreme Court?[8]

The selection of other judges, of the Supreme Court comes when there is any relevant vacancy. If a judge is about to retire, that is 1 month before the acknowledge vacancy, or if he retires voluntarily, then the Chief Justice of India initiates the proposal and sends the advice to the Ministry of Law, Justice and Company affairs to refill up the seat. The advice of the Chief Justice of India for the appointment of a Judge of the Supreme Court should be formed in consultation with a collegium of the four senior-most judges of the Supreme Court. After acknowledging the views of the four judges, the Chief Justice of India sends the proposal for appointment to the Ministry of Law, Justice and Company Affairs, which forwards it to the Prime Minister who further moves the proposal to the President of India for the ultimate approval. After the assent of the President, the Secretary to the Department of Justice is set to announce the appointment and issue the circular within the Gazette of India.

Conclusion

In legal parlance independence of judiciary means the facility of upholding without concerns or favor the rule of law, personal freedom, liberty, equality before the law and impartial and effective judicial control over the administrative and therefore the executive actions of the government. Our constitution contains many provisions that ensure the independence of judges. The tenure of the judges is fixed and their salaries and conditions of service can’t be altered to their disadvantage, no discussion can happen at the floor of the house except, in keeping with the procedure established by law. However, on the face of such provisions, threat and encroachment on the part of the sphere of judicial independence of judges.

There is a consensus that in today’s political conditions the ability of appointment of judges cannot be restored to government. In several countries of the Commonwealth, National Judicial Appointment Commissions are established to choose judges. Such judicial commissions have worked successfully in the U.K., South Africa, and Canada. The advantage of judicial commissions is that they are independent, broad-based and they represent not only the views of the judiciary but also of the executive and other sections of society.

Frequently Answered Questions (FAQs)

Ques 1- How are Supreme Court judges appointed?

Ans 1- The President nominates a person for the vacancy in the court and the legislature votes to confirm the nominee, which requires a simple majority.

Ques 2- How long is the term of Supreme Court Justice?

Ans 2- The Constitution states that Justices “shall hold their Offices during good Behaviour.” This means that the Justices hold office as long as they choose and can only be removed from office by impeachment.

Ques 3- How many judges are there in the Supreme Court?

Ans 3- There are currently 31 judges (including the Chief Justice of India) and the maximum possible strength is 34.

Ques 4- What is the age of the retirement of the Supreme Court Judge?

Ans 4- As per the Constitution of India, judges of the Supreme Court retire at the age of 65.

Ques 5- Which language is used in the Supreme Court of India in their proceedings?

Ans 5- According to Article 348(1) of the Constitution of India provides that all proceedings in the Supreme Court and every High Court shall be in the English language until Parliament by law provides otherwise. No law has since been made in this regard by the Parliament.

References

1) https://www.drishtiias.com/important-institutions/drishti-specials-important-institutions-national-institutions/supreme-court-of-india -Authored by Drishti IAS
2) https://www.thequint.com/explainers/explainer-appointment-and-removal-of-supreme-court-judges%20controversy#:~:text=Article%20124(2)%20says%20that,deem%20necessary%20for%20the%20purpose.
3) https://www.financialexpress.com/india-news/how-is-a-supreme-court-judge-selected-the-process-behind-elevation-to-indias-highest-judiciary/1146722/ FE Online Published 26^th April 2018
4) https://www.jagranjosh.com/general-knowledge/what-is-the-collegium-system-and-how-it-works-1525257473-1 Authored Hemant Singh, Published on 9 May 2019