Indian Polity / Judiciary
Appointment of Judges of Supreme Court and their Removal
The appointment of judges of Supreme Court and their removal process in India involves different procedures. All the judges of the Supreme
Court including the Chief Justice of India (CJI) are being appointed by the President of India. The judges of Supreme Court are removed by the process of
President appoints the judges with the consultation of CJI and 4 other senior judges of the Supreme court, which is called Collegium system.
That means President consults the Collegium while appointing judges. However, while appointing the CJI, President may consult any judge of the Supreme
Court or High Court but it is not compulsory.
Apart from regular judges, President of India may appoint certain Ad Hoc judges (temporary) in Supreme
Court only for the time being and in case of High Courts, he may appoint Additional judges. President or some other person who is appointed on his
behalf, administers the oath of Chief Justice of India and other judges.
- He should not have completed the age of 65 as the Supreme Court judge retiring age is 65.
- He must be a practicing advocate in any High Court or more than 1 High Court with a minimum period of not less than 10 years or he must be a
judge of any High Court or High Courts for not less than 5 years or he must be a famous jurist (expert in the field of law) in the
opinion of the President.
- As for the CJI, no specific qualification is mentioned. However, usually seniority will be the criteria. However, the seniority principle was violated
Even the Supreme Court in 1996, in the 3rd judge case ruled that seniority is not the criteria for the appointment of CJI.
Salary and Allowance
- Parliament of India fixes the salary and allowances of judges and it is charged on Consolidated Fund of India. It can not be reduced to their
disadvantage while they are remain in the office except during the times of financial emergency.
- They are also eligible for pension after their retirement. Half of the salary will be given as pension. They are eligible for a rent free accommodation and
Protections to Judges
Constitution of India provides and ensures certain protections against their Independence and Impartiality.
- They have foolproof appointment, in which even role of judiciary is present.
- They have fixed qualification, which cannot be altered conveniently.
- They are having good salaries and allowances, which are fixed by the Parliament.
- The integrity, the efficiency and the behavior of the judges of the Supreme Court and High Courts cannot be discussed anywhere in India including
in the Parliament except during the course of their removal.
- After retirement, the judges of the Supreme Court are not allowed to practice law before any authority or court in India. Supreme Court judges do
not have any tenure but they generally retire at the age of 65.
- Supreme Court Chief Justice and other judges will address their resignation to the President.
Removal of Judges in India
- The removal process of judges of Supreme Court and High Courts is same. The judges of Supreme Court and High Courts are removed by the process of
censure or impeachment on the grounds of incapacity or misbehavior.
- The motion relating to removal of judges of Supreme Court or High Courts may be got initiated in either House of the Parliament.
If it is initiated
in Rajya Sabha, 50 members of Rajya Sabha must sign the notice and it should be given to the presiding officer. If it is initiated in Lok
Sabha, 100 members have to sign the notice.
- The presiding officer of the initiating House will appoint an Inquiry Committee against the allegation of the judge. After that if the allegations
are proved, the House approves the motion with 2/3rd majority present and voting.
After that the motion is transmitted to the other
House. If the other House also approves the motion with same majority and basing on these resolutions, President of India removes the judge of Supreme
Court or High Court. So far no judge of Supreme Court or High Courts were removed.
- The first judge against whom the removal proceedings were initiated, was Justice V. Ramaswami of the Supreme Court. It was initiated in the Lok
Sabha but it got defeated due to lack of 2/3rd majority.
In case of Justice Soumitra Sen of Calcutta High Court, Rajya Sabha with overwhelming majority passed the impeachment motion but he resigned before the
Lok Sabha could proceed further.
Justice P. D. Dinakaran, the Chief Justice of the Sikkim High Court resigned when impeachment proceedings were initiated against him in the Parliament.
- While appointment of the judges by the President, Supreme Court gave varying definitions to the meaning of Consultation. In 1982 in 1st judge
case, it held that consultation means only exchange of ideas or views and not concurrence.
However, in 1993, in 2nd judge case, Supreme
court opined that consultation means concurrence. However again in 1996, in 3rd judge case, Supreme Court reversed its opinion and held that
consultation means only taking advice and not concurrence.
- The seniority principle in the appointment of CJI was violated twice in India. It was violated for the first time in 1973. Justice A.N. Ray
was appointed as the CJI bypassing 3 senior most judges.
They are A.N. Grover, J.M. Shelat and K.S. Hegde. Once again in 1977 during the
Janata Party Government, M.H. Beg was made as CJI bypassing H.R. Khanna who was the senior most then.
- While appointment and removal of judges of Supreme Court in India, a convention is followed that a person of the age less than 55 years will not
be considered for appointing as a judge of the Supreme Court.