Supreme Court of India: Composition, Appointment and Removal of Judges

Introduction

The Supreme Court of India is the highest court in the country and the final court of appeal in the Indian judicial system. Articles 124 to 147 of Part V, Chapter IV of the Constitution deal with its establishment, composition, powers and jurisdiction. The Supreme Court also protects the Constitution and ensures that the law is applied consistently throughout India.

Meaning and Definition of the Supreme Court

The Supreme Court is the highest judicial authority in India. It interprets the Constitution, decides disputes involving constitutional questions, hears appeals from lower courts and protects fundamental rights.

India follows an integrated judicial system, meaning that the Supreme Court, High Courts and subordinate courts form part of a connected judicial structure. Under Article 141, the law declared by the Supreme Court is binding on all courts within the territory of India.

The Supreme Court also exercises judicial review (the power of courts to examine whether laws and government actions follow the Constitution).

Constitutional Provisions

The main constitutional provisions relating to the Supreme Court are as follows:

Establishment and Composition of the Supreme Court

Article 124 provides for the establishment and composition of the Supreme Court of India.

The Supreme Court consists of:

• The Chief Justice of India (CJI), who heads the Court.
• Other judges appointed to the Supreme Court.

The Constitution originally provided for the Chief Justice and not more than seven other judges. Parliament may increase the number of judges by law. The present sanctioned strength is 34 judges, including the Chief Justice of India.

The number of judges is determined partly by the Court's workload and the need to hear cases efficiently.

Appointment of Supreme Court Judges

Constitutional provision

Under Article 124(2), Supreme Court judges are formally appointed by the President of India by a warrant bearing the President's hand and seal.

However, the appointment process is governed by the collegium system, developed through Supreme Court judgments. The President does not have unrestricted discretion to choose judges independently of this process.

The collegium system

The collegium system is the judicial process used to recommend appointments and transfers of judges to the higher judiciary.

For appointments to the Supreme Court, the collegium consists of:

• The Chief Justice of India.
• The four senior-most judges of the Supreme Court.

The collegium considers factors such as merit, integrity, judicial ability, seniority where relevant, and the need for diversity in the judiciary. Its recommendations are processed through the Union Government and formally appointed by the President.

The system developed through important Supreme Court decisions concerning judicial appointments.

Importance of judicial consultation

Article 124 refers to consultation with judges. The Supreme Court later interpreted these provisions to establish the collegium system, giving the judiciary a leading role in appointments.

This system aims to protect judicial independence by reducing the possibility of improper political influence over judicial appointments.

Qualifications for Appointment as a Supreme Court Judge

Article 124(3) specifies the constitutional qualifications for appointment as a Supreme Court judge.

A person must be a citizen of India and satisfy at least one of the following conditions:

• Judicial experience: Must have been a judge of a High Court, or of two or more High Courts in succession, for at least five years.
• Professional experience: Must have been an advocate of a High Court, or of two or more High Courts in succession, for at least ten years.
• Distinguished jurist: Must be, in the opinion of the President, a distinguished jurist (a person with outstanding knowledge and ability in law).

The Constitution does not expressly prescribe additional qualifications such as a particular minimum age or a specific educational degree beyond the requirements stated in Article 124(3).

In practice, integrity, independence, legal ability and sound judgment are important considerations in selecting judges.

Tenure and Retirement of Supreme Court Judges

Under Article 124(2), a Supreme Court judge holds office until attaining the age of 65 years.

A judge may leave office before retirement in the following ways:

• Resignation: The judge may resign by writing to the President.
• Removal: The judge may be removed through the constitutional procedure prescribed by Article 124(4).
• Retirement: The judge normally retires on attaining 65 years of age.

The age of a Supreme Court judge is determined according to the procedure provided by Parliament under Article 124(2A).

After leaving office, a former Supreme Court judge cannot plead or act as a lawyer in any court or before any authority within India, as provided by Article 124(7). This restriction helps protect the independence and dignity of the judiciary.

Removal of Supreme Court Judges

Meaning of removal

A Supreme Court judge cannot be removed by the government merely because the government disagrees with the judge's decisions. Article 124(4) establishes a special procedure to protect judicial independence.

A judge may be removed only on either of these grounds:

• Proved misbehaviour: Serious misconduct that has been established through the prescribed process.
• Incapacity: A condition that makes the judge unable to perform the duties of the office.

Both grounds need not be proved. Establishing either one is sufficient, but it must be proved through the required constitutional procedure.

Constitutional procedure for removal

The removal process involves several steps.

Initiation of the removal motion

A motion seeking removal must be introduced in Parliament. Under the Judges (Inquiry) Act, 1968, it must be signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha.

The Speaker of the Lok Sabha or the Chairman of the Rajya Sabha decides whether to admit the motion.

Investigation of the charges

If the motion is admitted, an inquiry committee is constituted under the Judges (Inquiry) Act, 1968. The committee consists of:

• The Chief Justice of India or a judge of the Supreme Court.
• The Chief Justice of a High Court.
• A distinguished jurist.

The committee investigates the allegations and determines whether misbehaviour or incapacity has been proved. The judge concerned must receive a reasonable opportunity to defend themselves.

Consideration by Parliament

If the committee finds that the charges have been proved, the removal motion may be considered by Parliament.

The motion must be passed by each House of Parliament separately, during the same session, with both of the following majorities:

• A majority of the total membership of that House.
• A majority of not less than two-thirds of the members present and voting.

Both Houses must satisfy these requirements. A simple majority alone is insufficient.

Order by the President

After both Houses pass the motion with the required majorities, an address is presented to the President. The President then issues the order removing the judge.

Thus, the judge is not removed merely because allegations are made or an inquiry is started. The constitutional requirements must be completed.

Why is the removal procedure difficult?

The procedure is intentionally demanding because judges must be able to decide cases without fear of losing their positions due to political pressure.

At the same time, the Constitution provides a way to remove a judge when serious misconduct or incapacity is established.

Judicial Independence and Constitutional Safeguards

Judicial independence means that judges must be able to decide cases fairly, without improper pressure from the government, political parties or other powerful individuals.

The Constitution provides several safeguards:

• Protected tenure: Judges cannot be removed at the government's discretion.
• Special removal procedure: Removal requires proof of misbehaviour or incapacity and the prescribed parliamentary majorities.
• Appointment safeguards: The collegium system gives the judiciary a leading role in appointments.
• Security of service conditions: Article 125 deals with salaries and allowances, subject to constitutional limits.
• Restriction after retirement: Article 124(7) prevents former Supreme Court judges from pleading or acting in courts or before authorities in India.

These safeguards help maintain public confidence in the judicial system.

Important Case Law

Supreme Court Advocates-on-Record Association v. Union of India (1993)

This decision is known as the Second Judges Case. The Supreme Court held that the Chief Justice of India's opinion, formed through consultation with senior judges, would have primacy in judicial appointments. This judgment established the collegium system in its modern form.

In re Special Reference No. 1 of 1998 (1998)

This decision is known as the Third Judges Case. The Supreme Court clarified the consultation process and held that the collegium for Supreme Court appointments should consist of the Chief Justice of India and the four senior-most Supreme Court judges.

Supreme Court Advocates-on-Record Association v. Union of India (2015)

In the Fourth Judges Case, the Supreme Court struck down the Ninety-Ninth Constitutional Amendment and the National Judicial Appointments Commission Act, 2014. The Court held that the proposed system threatened judicial independence, which is part of the Constitution's basic structure.

Distinction Between Appointment and Removal of Supreme Court Judges

Practical Example

Suppose a Supreme Court judge is accused of serious misconduct.

The allegation alone cannot result in removal. A removal motion must be initiated and admitted under the prescribed procedure. An inquiry committee investigates the charges and gives the judge an opportunity to defend themselves.

If the committee finds the charges proved, both the Lok Sabha and the Rajya Sabha must pass the removal motion with the majorities required by Article 124(4). Only after both Houses complete this process can the President issue the removal order.

This example shows how the Constitution balances accountability with judicial independence.

Summary

• The Supreme Court of India is the highest court in the country and is governed mainly by Articles 124–147 of the Constitution.
• Article 124 provides for the establishment, composition, appointment, qualifications, tenure and removal of Supreme Court judges.
• A person must be an Indian citizen and satisfy at least one of the three qualification routes under Article 124(3).
• Supreme Court judges retire at the age of 65 years.
• The collegium system, developed through Supreme Court judgments, gives the judiciary a leading role in appointments.
• A Supreme Court judge may be removed only for proved misbehaviour or incapacity through the constitutional procedure.
• Removal requires special majorities in both Houses of Parliament, followed by an order of the President.
• Judicial independence is protected through secure tenure, appointment safeguards and a strict removal process.
• Under Article 141, the law declared by the Supreme Court is binding on all courts in India.