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Topic: The Judiciary
The Supreme Court of India was constituted under Article 124 of the Constitution. It commenced its sittings on January 28, 1950.
The original Constitution of 1950 provided for a Supreme Court with a Chief Justice and 7 puisne Judges -(“puisne judge “is a judge of the Supreme Court other than the Chief Justice). Parliament is given the power to increase this number there was progressive increase in the total strength of the apex court to 26 in 1986. Supreme Court (Number of Judges) Amendment Act, 2008 increased the number of judges to 31 including the Chief Justice of India.
The proceedings of the Supreme Court are mainly in English and the procedure is regulated by the Supreme Court Rules, 1966.
The Supreme Court of India comprises the Chief Justice and not more than 25 other Judges appointed by the President of India.
In order to be appointed as a Judge of the Supreme Court
- a person must be a citizen of India and must have been:
- For at least five years, a Judge of a High Court or of two or more such Courts in succession, or
- An advocate of a High Court or of two or more such Courts in succession for at least 10 years, or
- in the opinion of the President, a distinguished jurist.
Art. 124 of the Constitution of India deals with the appointment of Supreme Court Judges.
Art 124(2) says that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary. In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. However, the actual process of appointment has gone through changes due to apex court verdicts.
3 Judges Case
In the SP Gupta case (1982) a seven-judge Constitution Bench held that the President is the final authority to appoint. He need not follow the advice of the judges whom he consults. In other words, consultation’ is not ‘concurrence’.
It is known as the First Judges case.
In 1993, a nine-Judge Constitution Bench of the Supreme Court in the Advocates on-record Association case, over-ruled the decision given in S.P. Gupta. The Supreme Court observed that when the President consulted the judges of the Supreme Court and the High Courts, the advice received by him is binding on him ‘consultation’ is concurrence’. It held that the recommendation for appointment should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should be followed by the President. In case of any divergence between the judicial advice and the Presidential opinion, the former will prevail. Article 50 is quoted to give substance to the verdict— divesting the executive of its judicial powers.
It is known as the Second Judges Case.
The 1993 decision was reaffirmed with minor modifications in 1998, on a reference made by the President under Article 143 of the Constitution. It was held that the recommendation for appointment etc should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) referred to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court.
It is known as the Third Judges Case.
So far as the appointment of the Chief Justice of the Supreme Court of India is concerned, both the 1993 decision and the 1998 opinion lay down that the senior- most judge should always be appointed as the chief Justice of India.
The Constitution also provides for the appointment of a Judge of a High Court as an ad-hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court.
Retirement, resignation and removal
Supreme Court judge retires when he attains the age of 65 years. He may resign addressing the letter to the President of India. He may be removed by an order of the President based on parliamentary vote.
Removal/Impeachment of Supreme Court Judge
Supreme Court Judge may be removed from his office by an order of the President passed after an address by each House of Parliament supported by special majority i.e 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 on the ground of proved misbehaviour or incapacity. Article 124(5) specifically Lays down that Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity. In pursuance of Article 124 (5), Parliament passed the Judges (Inquiry) Act, 1968. The Judges (Inquiry) Rules, 1969 lay down the details of procedure for investigation and inquiry into the allegations against a judge.
Judges (Inquiry) Act, 1968 regulates the procedure for the inquiry into an allegation of misbehaviour or incapacity of a Judge of the Supreme Court or High Court and for the presentation of an address by Parliament to the President for removing him from office, if charges have been proved.
The Act authorizes the constitution of a three-member committee once a motion for presenting an address to the President seeking the removal of a Judge is admitted in Parliament. The motion can be admitted only if 100 Lok Sabha or 50 Rajya Sabha members propose it. The committee includes the Chief Justice or one of the Judges of the Supreme Court, a Chief Justice of one of the High Courts, and one distinguished jurist.
The committee, after giving reasonable opportunity to the Judge concerned to defend himself/herself, has to submit its report to the Parliament. If the committee finds the Judge guilty- fully or partly, then its report, along with the motion, has to be considered by Parliament. The motion should be adopted by each House of Parliament by a majority of that House and by a majority of not less than two-thirds of the members of that House present and voting. The address shall be presented to the President during the same session of Parliament for the removal of the judge. The guilty Judge is removed from office by Presidential Order.