Appointment of Judges of Supreme Court

Appointment of judges of Supreme Court

Introduction

India is a big country. There are different types of crime occurred in day-to-day life. After happening of crime the matter goes into court for resolving the disputes between the parties. In solving or resolving the disputes of plaintiff and defendant Judiciary play a very crucial role. It is considered that the Judiciary has performed a very crucial role in interpreting and protecting the Constitution when any types of dispute arise since the constitution of India was enacted. If we say Judiciary is the most powerful organ of Government then it will not be wrong. India has a three-tier judiciary system. This means that India has mainly three different types of court these are Supreme Court ( apex court ), High Court, and District Court. As we know every court have judged to deliver judgment after hearing both sides of the parties. The Supreme Court of India is the most powerful organ of the judiciary, it is also known as the apex court of the country.  Now, we will discuss the procedure of appointment of judges of the Supreme court.

Now the question arises what is the main composition of the Supreme Court of India? The answer is very simple, As per article 124(1)  of the Indian constitution, the Supreme Court of India consists of a Chief Justice and other judges according to the needs of the supreme court. It can change according to from time to time and when they feel to increase or reduce the number of judges then they can change the number of judges according to need. Initially, the supreme court has 7 judges and one chief justice. But at present, it has 33 judges and one chief justice.

Qualification of appointment of judges

There are various qualifications required to appoint any judge of the supreme court. These conditions are required to qualify to be a judge of the Supreme court. If any conditions or qualify not satisfied then in this case the person will not be suitable to become the judges of the Supreme Court. These qualifications are given as below:-

  • He must be a citizen of India.
  • He must be a Judge of a High Court at least five years or two or many such Courts in succession.
  • He must have to be practice as an advocate in the high court at least for 10 years.
  • It is in the opinion of the president, a distinguished Jurist

These are the conditions that must be satisfied to be the judge of the Supreme Court. There is no minimum age prescribed to be a judge of the Supreme Court. It is considered that till now no person has been appointed as a judge of the Supreme Court through the fourth condition. Most of the judges that have been appointed to the Supreme Court are based on their “five years of experience as the judges in the High Court”. It is considered that only eight persons have been able to be appointed as Supreme Court judge based on their 10 years of experience as an advocate in the High Court. Out of eight persons, Justice Indu Malhotra is the one who is currently a Supreme Court judge appointed based on 10 years of experience as an advocate in the High Court and she is the only woman in this category.

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Appointment of judges of the supreme court

As we know every judge of the supreme court is appointed by the President of India, after making the consultation with such of the Judges of the Supreme Court and the High Court. To understand the current procedure of the appointment of the judge of the Supreme Court, we need to understand the various procedure which is given as below:-

  1. The procedure of appointment of Supreme Court judge before the 99th amendment.
  2. The procedure of appointment of Supreme Court judge after 99th amendment
  3. The present procedure of appointment of judges of the Supreme Court.

Before the 99th amendment of the constitution, It is considered that as per article 124 (2) which tells us that every judge of the Supreme Court shall be appointed by the president after making consultation with such of the judges of the Supreme Court and of High Court in the states as the President may deem necessary for the purpose. But in case of appointment of a judge other than the Chief Justice, the Chief Justice of India must be consulted.

This means that as per article 124 (2) of the constitution, the president was bound to consult the Chief Justice of India in case of appointment of other judges of the Supreme Court. But in the case of the appointment of the Chief Justice of India, he was not bound to consult with anyone.  It is considered that since 1973 the senior-most judge of the Supreme Court was appointed as the Chief Justice of India. And this practice was followed by the president without any exception. But this way of appointment was suddenly broken by the government when Justice A.N. Roy was made the Chief Justice of India after superseding three senior-most judges of the Supreme Court and the name of judges are Justice Hegde and Justice Grover, Justice Shelat. After the appointment of Justice A.N. Roy as the chief justice, A huge debate was started in the whole of India about the way of appointing judges of the Supreme court.

At the end of the debate, the majority person was in favor that no judge can be appointed without the confirmation form of  Chief Justice of the Supreme Court. Hence the decision was laid down in case of appointment of judges of the Supreme Court.

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Now the 99th Constitutional amendment Act 2014 talk about bringing more transparency in the case of judicial appointment[1]. It is also known as the NJAC Judgement which stands for the National Judicial appointment commission.[2] After this amendment, as per article 124(2) of the constitution, Each judge of the Supreme Court shall be appointed by the president by warrant under his hand on the recommendation by the National Judicial Appointment Commission that is referred to in article 124 A. It is consisted of:-

  1. The Chief Justice of India.
  2. Two senior judges of the Supreme Court.
  3. The Union law minister.
  4. There must be two eminent people to be nominated by the committee the consisting of the prime minister, Chief Minister of India, and also the leader of the opposition.

After seeing the procedure of appointment of judges through the 99th amendment act which brought NJAC, we can say that it established the wisdom of appointment of judges and that can also be shared with the political executive. This was a great change that occurred in the procedure of appointing a Judge of the Supreme Court. But after sometimes in the Supreme Court Advocates on Record Association v. Union of India, the Supreme Court struck down the NJAC Act and declared as unconstitutional. The Court held that the NJAC act makes the alteration in the basic features of the constitution and that impairs the independence of the judiciary as well as the separation of powers by conferring arbitrary and uncharted powers on various authorities under the statute. Hence we can say that the amendment cannot be sustained long and as a result, the collegium system got revived once again.

Removal of judge of Supreme Court

The Constitution of India also provides various rules and regulations for the removal of the Supreme Court judge.  Article 124(4) mentions those Removal regulations of the Supreme court judge as follows:

A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the president in the same session for such removal on the ground of proved misbehavior or incapacity. The process of removal of judges is known as the process of impeachment. Once the motion is passed by both houses of parliament and which is not less than 2/3rd of the total of houses and after that the voting is presented to the President. After the bill getting the assent of the president, the judges will be removed. The process of impeachment of judges is the same for both the High court and The Supreme Court. But till now no judges removed by the process of impeachment. It is considered that the impeachment process was started against justice R. Ramaswamy in 1991-92 but Lok Sabha the congress party abstained from voting against justice R. Ramaswamy and hence the motion could not be passed with the required majority.

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Conclusion

As we know that in modern-day the demand for everything is increasing day to day as a result people commit a crime to satisfy their demands. After the crime happened the matter goes into court to resolve the disputes of both plaintiff and defendant. To resolve disputes of both parties the judge gives judgment based on fact and circumstances after hearing both the parties. And these judges are appointed by the president of India after consultation from several judges of the Supreme court and the High court in the president of the state may deem necessary for the purpose ( as per article 124(2) of the Indian Constitution. Similarly, the judges of the High court shall be appointed by the president after making consultation with the CJI, governor of that state, and in case of appointment of the judge other than the chief justice. It is considered that from 1973, the process of appointing the senior-most judge of Supreme Court as the Chief Justice India, the gradually developing of a collegium system by the precedence established by the Supreme Court judgments in the cases of three judges to appoint judges of the Supreme Court. And this indicates that the collegium system of appointing judges has ensured the independence of the judiciary. So, we can say that with the need of time the more efficient system surely required to be found for the appointment of the judges. so that the appointment procedure could be fairer and the judiciary will have the best possible minds as judges as a result judiciary will be able to give the right judgment without any mistake.

 

Article by AMIT SHEORAN, a student at Symbiosis Law School, Nagpur

[1] The constitutional ( 99th amendment ) Act 2014 as published in the Gazette of India, Extra Ordinary Part 2nd dated 31 December 2015 which was held invalid by the Supreme Court.

[2] National Judicial Appointment Commission Act 2014 (No 40 of 2014 ) as published in the gazette of India, Extra ordinary Part 2nd dated 31 December 2015 which was held invalid by the Supreme Court.

Author: AMIT SHEORAN,
Symbiosis Law School, Nagpur

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