This is an exhaustive article which deals with the various provisions related to the appointment of Judges in INDIA.
Composition and Appointment of Judges in India
ACC. To Article 124(2), the president has the power to appoint every judge of the High Court by warrant under his hand and seal on the recommendation of the NJAC (124A). Under Article 124(1), there should be 1 Chief justice of India (CJI) and 7 other judges, but parliament have
the power to increase the number of judges, Now there are 27 Judges including CJI and the maximum possible strength is 34.
Appointment of Active Chief Justice (Article 126)
When the seat of the CJI is vacant for any reason, any other judge of the Supreme Court
holds the office whom the president appointed for this purpose while the appointing of
The chief justice of the Supreme Court is the Chief justice of India, or at such other place
as the CJI may, with the approval of the President Appoint time –time as per Article 130 of the Indian Constitution. The president has consulted with other such judges of the Supreme Court and High Court as he deems necessary.
Appointment of Ad- Hoc judges (Article -127).
The CJI may call a judge to act as an ad-hoc judge of the Supreme Court, for such period as may be necessary, if the quorum of the Supreme Court is insufficient to hold the office. Before making such an appointment, the CJI has to consult with the Chief justice of the High Court and obtain the prior consent of the President.
Appointment of the Judges
Appointment of Judges of the Supreme Court is an ambiguous topic for discussion, to under the present method of appointing as a judge, its better if we divided it into three-phase:-
After 1994- Before 2014.
Before 1994 I Phase- How to appoint the Judges
Before the year 1993, the power of the president to appoint the judges was pure of a formal nature, he would act in this matter as in other matters on the advice of the COM (council of ministers). The final power to appoint the Supreme Court judges to rest with the executive. On one side we talk about the supremacy of the Judiciary,
There are three pillars of government Legislative, Executive and judiciary, legislative and executive are dependent on the body they both are dependent on each other but the judiciary is an independent body. Judiciary doesn’t need to depend on any other body. Then why do we need an executive for the appointment of the judiciary, if we want an independent judiciary we have to remove the political interference.
In 1973, the government suddenly departed from this practice and appoint Justice A.N Roy as a Chief justice of India, he was the Fourth senior-most judge, thus other three senior judges were by-pass, who then resign from the court in Protest this raised a hue and cry in the country and government was accused of tampering with the independence of the judiciary.
The same thing happens in 1976, the Justice beg was appointed as chief justice bypassing justice Khanna who was senior to him at that time, suddenly justice Khanna resigns in the protest.
After 1994-Before 2014 II Phase- How to appoint the Judges
When the government has the discretion to appoint the chief justice there was no guarantee that the best man for the post will be always be appointed, Appointment of a junior judge always results in the resignation of a judge senior to him like justice AN Roy or Justice Beg.
SC Advocate on record Association v. UOI (1993) 4 SCC 441
The Supreme Court held that in the matter of appointment of judges of Supreme Court and High Court. SC also held that the appointment of CJI shall be the most senior Judges of the Supreme Court. The main purpose underlying the law done by the Supreme Court in the matter of appointing judges of SC was to minimize the Political Influence
After 2014 III Phase-Appointment of judges
In SP Gupta V. UOI, AIR 1982 SC 149, the executive came to wield overriding power matter in the matter of appointment of Judges.
In 2014, the Central Government formed a Nation Judicial Appointment Committee (NJAC) vide the 99th Amendment Act (Article 124A).
This Commission Consist of:-
- The Chief Justice of India.
- The other two Senior Judges of the Supreme Court.
- The Union Minister (Law Minister).
- Two Eminent Power.
- Leader of the opposition.
Supreme Court Advocate-on-Record Association V. UOI, 2016 5 SCC 1, The Supreme Court Quashed the NJAC So Formed.
A person should be a citizen of India In addition, he may have been-
- Either a judge of a High Court for Five Years.
- An Advocate of a high for ten years.
- Maybe, in the opinion of the president, a distinguished jurist, Article 124(3).
Judges of the Supreme Court may be Resign his offence by writing to the president. He holds office until he attains the age of 65 years. If a question arises regarding his age.
REMOVAL OF A JUDGE
The question of the removal of a judge before the age of retirement is an important one as it has a significant bearing on the independence of the judiciary.
In every democratic country swearing by a rule of law, therefore special provision is made for the removal of judges. Constitution of India makes some special provisions for the removal of the Supreme Court judges under Article 124(2),
A Judge may remove from office by the president on an address by both the house of Parliament presented in the same session for proved misbehaviour or incapacity and the address must be supported by the majority of the member of each house and also by a majority of not less than two-thirds of the member of each house and voting.