Lessons From The Law

Procedure

There are various procedures for the appointment of Judges in the Supreme Court. The appointment is governed by various provisions in the Indian Constitution. Article 124 of the Indian Constitution deals with the appointment of Chief Justice and Judges of the Supreme Court. The collegium system is still followed for the appointment of the Judges. Article 124 of the Constitution says only seven judges can be appointed in the Supreme Court and the appointment can be increased when the Parliament deems it to be necessary. The President has the power to appoint Judges after consulting the Chief Justice of India, the other Judges of the Supreme Court and also in certain cases other judges of the High Court. The Judges can hold office until they attain 65 years of age. Article 127 of the Indian Constitution deals with the appointment of ad-hoc judges in the Supreme Court.

Article 124 of the Indian Constitution provides various qualifications which have to be satisfied for the appointment. The person who satisfies all these necessary qualifications is only recommended. They are:

• The recommended person must be a citizen of India;
• They should not be above 65 years of age;
• They must have been a judge of one or more High courts continuously for five years;
• They must have been an advocate in the high court for at least ten years;
• The recommended person must be a distinguished jurist in the opinion of the President.

Salary

The salaries of the Supreme Court judges is determined according to Article 125 of the Indian Constitution. The salary provided to the Supreme Court judges is high compared to the High Courts. The salary is determined by the Parliament by law and if provisions are not made clear the salary mentioned in the second schedule must be provided.

Appointment of acting Chief Justice and Ad Hoc judges

Article 126 of the Indian Constitution deals with the appointment of acting Chief Justice. The President can appoint other judges of this court as acting Chief Justice when the office of Chief Justice is vacant or they are unable to perform their duties due to various issues like health issues. Article 127 deals with the appointment of Ad Hoc judges. According to this Article, Ad Hoc judges can be appointed in various situations like when the quorum of the Judges of the Supreme Court are not available to hold or continue any session of the Court, then it is the duty of the Chief Justice to appoint Ad hoc judges with the consent of the President of India.

Transfer of Judges

Transfer of Judges in the High Court

Article 222 of the Indian Constitution provides the transfer of Judges from one High Court to another. The same procedure is also followed even for the transfer of Chief Justice. The President has the power to transfer the Judges from one High Court to another. This transfer must be made only after consulting the Chief Justice. There is also a provision for providing a compensatory allowance to the Judges who are transferred in addition to their salary.

Landmark Judgments

S.P Gupta v Union of India

Several writ petitions were filed in the various High Courts regarding the appointment of High Court Judges as well as the Supreme Court judges in the form of public interest litigation. These petitions were transferred to the Supreme Court using suo moto cognizance. The main issue was to decide whose opinion in the collegium should be given primary importance while appointing the judges. The majority opinion was that “the opinions of Chief Justice of India and opinions of the Chief Justice of High Court were merely consultative and that power of appointment solely resides in the Central Government ”.

The meaning of the word consultation was also discussed in the case. The word consultation mentioned in Article 124 and Article 217 in relation to all consultees and final decision in the matter was left to the Central executive. The majority took an extremely literal and positivistic view of Article 217. The central government even after this judgment followed the old practice and no judge was appointed without the name being cleared by the Chief Justice of India.

Supreme Court Advocates on record association v. Union of India

This case was a landmark judgment which constituted a bench of nine judges. This case is popularly known as the Second Judges case. The main question that was decided was whether the independence of the judiciary is the basic feature of the constitution. The Supreme Court Advocates-on-Record Association and Senior Advocates filed writ petitions before the Supreme Court which questioned the constitutionality of the 99th Amendment and the NJAC Act. The petitions accused that the NJAC violated the basic structure of the Constitution by compromising the judiciary’s independence. The majority verdict the Chief Justice has the power to appoint and transfer Judges. The Chief Justice of India needs to consult only two senior-most judges during the time of appointment.

The first major issue which was in question was the meaning of the term “consultation” which is present in Article 124. The majority came to a conclusion that it means an “integrated, participatory and consultative process”. This leads to complete discharge of constitutional obligations on the part of constitutional functionaries. Various methods have been used by the Judges in the case to establish that “consultation” means occurrence or primacy notably among which are” The Chief Justice of India as a ‘Paterfamilias’ would be competent enough and has the best qualities to judge and differentiating the Indian constitution with other constitutions, our constitution does not vest absolute discretion in the hands of the executive. Hence, the Chief Justice of India cannot be considered as an inferior position.

In re Special Reference 1 of 1998

This is another famous case which decided various regarding the appointment of Judges. The main issue that was to be decided was whether the expression “consultation with the Chief Justice of India” which are mentioned in articles 217(1) and 222(1) requires consultation with a many Judges when the opinion of the Chief Justice of India is formed or does the single individual opinion of the Chief Justice of India constitute a valid consultation that comes under the meaning of the term “consultation” which is mentioned in the above said articles. The case also decided various other issues like whether any recommendations made by the Chief Justice of India without following the rules and the process of consultation are binding upon the Government of India.