THE JUDICIARY

A. The Supreme Court

124. Establishment and constitution of Supreme Court:

(1) There shall be a Supreme Court of India consisting of a Chief justice of India and, until the Parliament by law prescribes a larger number, of not more than seven other Judges.

(2) 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 for the purpose and shall hold office until he attains the age of sixty-five years:

Provided than in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:

Provided further that—

(a) A Judge may, by writing under his hand addressed to the President, resign his office;

(b) A Judge may be removed from his office in the manner provided in clause (4)

(2A) the age of a Judge of the Supreme Court shall be determined by such authority and in such manner as the Parliament may by law provide.

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and –

(a) has been for at least five years a Judge of a High Court or of two more such Courts in succession; or

(b) Has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or

Explanation I:

In this clause, “High Court” means a High Court which exercises or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.

Explanation II:

In computing for the purpose of this clause, the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of the Parliament supported by 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 has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity

(5) The Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4)

(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule

(7) No Person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India

COMMENTS

The manner in which judges of the Supreme Court and High Court are appointed has been and still remains an issue of constitutional significance. The striking down of the constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 has raised issues on the power of the appointment of judges and more significantly whether the executive should have any role in the appointment of judges or not. For a long time the judiciary recognized the role of executive in appointment of judges. The first controversy arose in S.P.Gupta vs. Union of India wherein a letter from the Union La Minister to the Governor of Punjab and to the Chief Ministers of all States and the addressed was questioned by way of writ under Article 32 of the Constitution. The letter informed the addresses, inter alia, that”…one-third of the Judges of the High Court, should as far as possible be from outside the State in which the High Court is situated…” and the addressees were requested to obtain from all additional Judges working in the High Court their consent to be appointed as permanent Judges in any other High Court in the country. In response to the letter, quite a few additional Judges gave their consent to be appointed outside their parent State. The primacy of the executive was accepted by the majority though the judgment was rendered by a majority of 4:3. In the First Judges case, as it is known on issue of independence of judiciary and on the interpretation of the word ‘consultation’, the judges observed as under:

(a) P.N. Bhagwati, J. (as he then was) opined on independence of judiciary and on the meaning of the term ‘consultation’ and on consultation process as under:

(i) On the Subject of independence of judiciary, it was opined that:

“… The Concept of independence of judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice or our democratic polity. If there is one principle which runs through the entire fabric of the entire Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and, thereby, making the rule of law meaningful and effective… The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive, and, therefore, it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution. It has many dimensions, namely fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong (paragraph 27).

(ii) On the question of the meaning of the term “consultation” expressed in Article 124(2) and Article 217(1), it was held that this question was no longer res Integra, as the issue stood concluded by the decision of the Supreme Court in Union of India vs. Sankalchand Himatlal Sheth, wherein its meaning was determined with reference to Article 222(1).

Each of the constitutional functionaries, required to be consulted under Article 124 and Article 217, must have for his consideration, full and identical facts bearing upon appointment or non-appointment of the person concerned, and the opinion of each of them taken on identical material, must be considered by the Central Government, before it takes a decision, whether or not to appoint the person concerned as a Judge. It was open to the Central Government to take its own decision, in regard to the appointment or non-appointment of a Judge to a High Court or the Supreme Court, after taking into account and giving due weight to the opinions expressed. It was also observed that the only ground on which such a decision could be assailed was that the action was based in mala fides or irrelevant considerations, in case of a difference of opinion amongst the constitutional functionaries, who were to be consulted, it was felt that it was for the Central Government to decide, whose opinion should be accepted. The contention raised on behalf of the petitioners, that in the consultative process, primacy should be that of the Chief Justice of India, since he was the head of the Indian Judiciary and pater families of the judicial fraternity, was rejected for the reason that each of the constitutional functionaries was entitled to equal weight age. With reference to appointment of Judges of the Supreme Court, it was held that the Chief Justice of India was required to be consulted, but the Central Government was not bound to act in accordance with the opinion of the chief Justice of India, even though this opinion was entitled to great weight it was, therefore, held that the ultimate power of appointment rested with the Central Government (paragraph 30).

(iii) On the issues of appointment of Judges of the Supreme Court, it was conclude that consultation with the chief Justice of India was a mandatory requirement .But While making an appointment, consultation could extend to such other Judges of supreme Court, and of the High courts, as the Central Government may deem necessary. it was felt that consultation with the Chief Justice of India alone, with reference to the appointment of Judges to the Supreme Court, was not a very satisfactory mode of appointment because wisdom and experience demanded that no power should rest in a single individual howsoever, high and great he may be , and howsoever honest and well-meaning. It was suggested that it would be more appropriate if a collegiums would make the recommendations to the President with regard to appointments to the higher Judiciary, and the recommending authority should be more broad-based. if the collegiums was comprised of persons who had knowledge of persons, who may be fit for appointment to the Bench, and possessed the qualities required for such appointment, it would go a long way towards securing the right kind of Judges, who would be truly independent(paragraph 31).

(b) The observation of other judges was as under:

1. A.C.Gupta, J.;

(i)On the subject of the “independence of the judiciary” ‘it was opined that the same did not mean freedom of judges to act arbitrarily. It only meant that the Judges must be free while discharging their judicial functions. In order to maintain “independence of Judiciary”, it was felt that Judges had to be protected against interference, direct or indirect .it was concluded that the constitutional provisions should not be construed in a manner that would tend to undermine the concept of “independence of the judiciary” (paragraph 119).

(ii)On the question whether the opinion of the Chief Justice of India would have primacy in case of a difference of opinion between the Chief Justice of a High Court and the Chief justice of India, the view expressed was that the president should accept the opinion of the Chief Justice of India, unless such opinion suffered from any obvious infirmity .and that the President could not act as an umpire, and choose between the two opinions (paragraph 134).

2. V.D.Tulzapurkar, J.

(i) Insofar as the question of “independence of the judiciary”, it was observed that while the administration of justice drew its legal sanction from the Constitution, its credibility rested in the faith of the people. Indispensable to such faith was the “independence of the judiciary”. An independent and impartial judiciary, it was felt, gives character and content to the constitution milieu (paragraph 874).

3. E.S.Venkataramiah, J. (as he then was);

(i) with reference to the “independence of the Judiciary”, it was opined that the same was one of the central values on which the Constitution was based. It was pointed out that in all countries, where the rule of law prevailed, and the power to adjudicate upon disputes between a man and a man, and a man and the State, and a State and another State, and a State and the centre, was entrusted to a judicial body, it was natural that such body should be assigned a status, free from capricious or Whimsical interference from outside, so that it could act without fear and in consonance with judicial conscience (paragraph 1068).

The First judges case held the field from 1981 to 1993 and appointment of judges by a ‘collegiums ‘ was followed and the role of the executive including the Union Law Minister was recognized.