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Appointment of Supreme Court Judges

Introduction:

The Judiciary system is an independent and impartial authority that cannot be interfered with by other branches of the government. It makes sure that the country follows the rule of law and the Government runs under law. The role of interpreting and applying the law lies in the Judiciary system. The division of powers between the Central and State governments is the core aim of the federal Constitution. But a disagreement between the Centre and its constituent units may arise concerning their corresponding powers. These disputes will be settled by the Judiciary and it provides justice to every citizen. The Supreme Court is the highest judicial court in a country or state. It is the final Court of appeal where the citizens can seek justice. This paper focuses on the appointment, tenure, and removal of judges in the Supreme Court and the jurisdiction of the Supreme Court.

Government of India:

The structure of the Government includes three branches. They are,

  1. The Executive- The executive does not have the power to make any law or to interpret it. The executive is responsible for and makes sure of the management of the state’s everyday activities.

  2. The Legislative- The Legislature ie. The Parliament consists of two houses namely Rajya Sabha or the upper house and Lok sabha or the lower house. This branch forms policies and laws to govern the nation.

  3. The Judiciary- The welfare of the citizens is governed by the Judiciary system by ensuring to enforce law and order.

Hierarchy of the judiciary system:

India is a country with a huge population. Therefore the judiciary system planned to locate the Courts as per the requirement of the citizens. The judiciary system is grouped into the following types of courts,

  1. The Supreme Court

  2. The High Court and

  3. The Subordinates Court

There are also village courts, executive & revenue courts. The Subordinate Court includes the civil court followed by the munsif court and the criminal court.

The Supreme Court:

The Supreme Court is the paramount constitutional court and has the potential of judicial review. It was said by G. Austin that, “The Supreme Court is called upon to safeguard civil and minority rights and play the role of guardian of the social revolution”. The supremacy of the constitution is maintained by the Supreme Court. It acts as a final interpreter in the appeal of civil and criminal matters. Besides, it also acts as a Guardian to the Constitution and the fundamental rights of the people. It draws a line between individual liberty and social control.

There shall be a Supreme Court of India consisting of a Chief Justice and, until the Parliament by law prescribes a larger number, of not more than seven judges[1]. This number has been increased and now the Supreme Court consists of a maximum of 34 Judges along with the Chief Justice.

Appointment of Judges: 

The Chief Justice of India and other Supreme Court Judges are appointed by the President. Under Article 124(2) the President is bound to consult the Chief Justice of India in appointing the other Judges of the Supreme Court. And while appointing the Chief Justice, the President consults with the Supreme Court and the High Court Judges. To be appointed as the Judge of the Supreme Court Article 124(3) lays down the following qualifications,

  1. One must be a citizen of India and should have worked as the High Court Judge for at least five years,

  2. One should be as an advocate in the High Court for at least ten years and

  3. Must be in the opinion of the President, a distinguished jurist.

The eligibility criteria for a person to be qualified as the Supreme Court Judge is also stated under section 5 of the Courts Act, 1961.

Tenure and Removal of Judges:

Till the age of 64 years, a Judge can hold his/her office in the Supreme Court.

A Judge can resign by writing resignation to the President. In Union of India v Gopal Chandra Mishra[2], the Court held that in the absence of legal, contractual, or constitutional base a “prospective” resignation be withdrawn before it becomes effective.

On the recommendation by the Parliament also the President can remove a Judge.

Article 124 clause 4 the order of the President the order is passed only after both houses of the Parliament addresses it. The expression “misbehavior” in Article 124(4) includes criminal misconduct defined in the Prevention Corruption Act[3].

The Parliament will determine the proof of the misbehavior or incapacity of a Judge and the procedure of the presentation of an address of investigation under Article 124(5). The machinery for investigation and finding of proof of the misbehavior or incapacity being statutory is governed entirely by the provisions of the law enacted under clause 5 of Article 124[4].

Salaries and allowances:

The Judge of the Supreme Court will be paid as per the second schedule. A Judge will be entitled to such salaries, privileges, and allowances as determined by the Parliament.

Oath:

An oath must be taken before the President by the person who is appointed as a Judge before entering his office.

Acting Judge:

Under Article 126 the President may appoint another Judge of the Supreme Court in case the office of the Chief Justice is vacant or in absence of him or is unable to perform his duties.

Ad hoc Judges:

To avoid the quorum of the Supreme Court Judges in consent withholding or continuing any session of the Court, with the consent of the President and consultation with the High Court Chief Justice, the Chief Justice of India request the writing the attendance at the sittings of the Court, as an ad hoc Judge for such period as may be necessary under Article 127.

Article 127 authorizes the Chief Justice of India to appoint ad hoc judges to the Supreme Court[5].

Retired Judges:

Under Article 128, a retired Judge of the Supreme Court or the High Court can be appointed by the Chief Justice of India to act as a Judge of the Supreme Court for a temporary period. The CJI can appoint a retired Judge only with the consent of the President.

Supreme Court seat:

Article 130 cannot be construed as casting a mandatory obligation on the Chief Justice of India to appoint places or places other than Delhi as the seat of the Supreme Court[6].

Jurisdiction of the Supreme Court:

Court of Record:

Under Article 129, the Supreme Court is made as a Court of Record. It is considered to be legal precedents and recordings. The Supreme Court’s judgments and proceedings are recorded for testimony. This Constitution expressly confers the Supreme Court’s power to punish for the contempt of Court. This extraordinary power must be sparingly exercised only where the public interest demands[7]. The power of the courts for punishing contempt of courts and regulating the procedure is also given under the Contempt of the Courts act, 1971. It was held that under Article 129 the Supreme Court has the power to punish a person for the contempt of itself as well as of its subordinate Courts[8].

Original Jurisdiction:

Under Article 131 the Supreme Court has original jurisdiction in any dispute between the Government of India and one or more states or any State, or States on one side or one or more States on the other; or between two or more States. The term ‘legal right’ means a right recognized by the power of a State but not necessarily in the Court of law[9].

Writ jurisdiction:

Under Article 32 the following writs can be empowered by the Supreme Court.

  1. Habeas corpus

  2. Mandamus

  3. Prohibition

  4. Quo warranto

  5. Certiorari

Advisory jurisdiction:

On matters like fact or public importance and on any disputes regarding pre -constitution treaty and other similar matters the President may seek the opinion of the Supreme Court under Article 143.

Appellate Jurisdiction:

In a country, the Supreme Court falls to be the highest Court for appeal. Under Article 132 the jurisdiction of the Supreme Court is divided into 4 categories,

  1. Civil matters

  2. Constitutional matters

  3. Criminal matters

  4. Special leave to appeal

Judicial review power:

The constitutionality of the legislative enactments and executive orders can be examined to judicial review in the Supreme Court.

Conclusion: 

The Supreme Court guarantees each citizen in protecting their rights and liberties. It also ensures to uphold the values of the rule of law. Hence there is no doubt the Supreme Court plays a very important role in our constitutional system and therefore called the Guardian of the Constitution.

Case Laws:

[1] INDIA CONST. art. 124, cl. 1.

[2] A.I.R. 1978 S.C. 694.

[3] K. Veeraswami v Union of India, (1991) 3 S.C.C. 655.

[4] Sarojini Ramaswami v Union of India & Ors, (1991) 4 S.C.C. 699.

[5] V.K. Kulkarni v. State of Mysore and anr., A.I.R. 1963 Mys303.

[6] Gajula Rajaiah v State of A.P and Others, 2001 (2) ALD 666.

[7] Hira Lal v State of U.P, A.I.R. 1954 S.C. 743.

[8] Delhi Judicial Service Assn. v State of Gujarat, (1991) 4 S.C.C. 406.

[9] United Provinces v Governor-General in Council, A.I.R. 1939 S.C. 58.

illakiya

SASTRA UNIVERSITY


 

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