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Posted by on Mar 10, 2014 in Judiciary |

Supreme Court – Composition and Independence

The Judiciary system of India is integral or hierarchical in nature (Supreme Court at Centre – HC in states – district courts at district level etc.) but in America Federal court at Centre level for enforcement of union laws and state courts at state level for enforcement of state laws. In other words, Supreme Court and High Courts of India has powers for enforcement of both state and central laws. Articles 124 to 147 in Part V of the Constitution describe organization, jurisdiction and powers of Supreme Court.

Appointment of Judges

  • The constitution says that the Chief Justice of India (CJI) and other judges of Supreme Court are appointed by President after consultation with such judges of Supreme Court and HC as he thinks fit.
  • Second Judges Case (1993) – The Supreme Court ruled that the advice given by CJI is binding on President but CJI shall give such advice after consulting with two senior most­ judges. Also it is held that only senior most judge of Supreme Court can be appointed as CJI. The consultation with two judges by CJI, while tendering advice to President, is not binding on CJI.
  • Third Judges Case (1998) – The Supreme Court ruled that sole opinion of CJI is not sufficient in appointment of judges. So to create primacy of consultative process, the Supreme Court held that
    • There shall be a Collegium of CJI and four senior most judges to tender advice to President;
    • The recommendation made by collegium on basis of consensus but in case of difference of opinion no one would be appointed if CJI dissents;
    • If two or more judges give adverse opinion then CJI shall not send recommendation to govt;

The recommendations of CJI are not binding on the govt or President if recommendations are in conflict with norms and requirements.

  • Acting CJI – The President can appoint a judge of Supreme Court as an acting CJI if office of CJI is vacant or he is absent or he is unable to perform his duties.
  • In absence of quorum of judges of Supreme Court to hold session of court, the CJI can appoint a judge of HC (who is qualified to be appointed) as an ad hoc judge of Supreme Court for temporary period with prior consent of President and after consultation of CJ of concerned HC.

Qualifications and Tenure

  • The Constitution has not described minimum age of appointment and any tenure of office of a judge of the Supreme Court. He shall remain in office till attain age of 65 years.
  • A person shall not be qualified for appointment as a Judge of the Supreme Court unless
    • He is a citizen of India;
    • He has been for at least 5 yrs a judge  of one or of two or more HC in succession;
    • He has been for at least 10 yrs a advocate  of one or of two or more HC;
    • He is, in opinion of the President, a distinguished jurist.

Impeachment of a Judge

A judge of Supreme Court can be removed or impeached by Parliament on ground of ‘proved misbehaviour’ or ‘incapacity’. The procedure to remove a judge as regulated by Judges Enquiry Act (1968) is as follows:-

  • A motion address to the President shall be signed by at least 100 members of LS or 50 members of RS is delivered to the Speaker of Chairman;
  • The motion is investigated by a committee of 3 members which shall consist of a) CJI or a judge of Supreme Court, b) CJ of a HC and c) a distinguished jurist.
  • If committee found judge to be guilty of misbehaviour or incapacity then house can take consideration of motion with report of committee.
  • If motion is passed in each house by special majority ( i.e. passed by majority of total membership of house or majority of 2/3rd of present and voting) then address is presented to the President.
  • The Judge of Supreme Court assumed to be removed from office as soon as the President issues order of removal.
  • Status till now – But till now no judge of Supreme Court has been impeached. However there is only case of impeachment against Justice V Ramaswami (1991-93) is initiated and inquired by committee and found guilty. But motion was defeated in the LS as Congress party abstained voting.

Independence of Supreme Court

  • Appointment – As after second and third judges case, the appointment of a judge of Supreme Court is under purview of collegium of 5 senior most judges and completely aloof from powers of executive and legislature.
  • Tenure – The security of tenure is definite or certain till age of 65 yrs as Supreme Court judge can’t be removed except by address of President which is subjected to procedure as above defined.
  • Emoluments – The Judges are entitled to fix salary and service conditions as determined by Parliament. But can’t be changed to their disadvantage after appointment except in case of Financial Emergency. The expenses of Supreme Court are charged on Consolidated Fund of India which is not subjected to the vote of the Parliament.
  • Retirement – The Supreme Court judge shall not plead or act in any court or before any authority within territory of India. But retired judge can be appointed as judge of Supreme Court for temporary period as deem fit by CJI.
  • Conduct of Judges – The conduct of judges of Supreme Court (or of a HC) can’t be discussed in the Parliament unless any motion of removal or impeachment has been moved.
  • Powers – The Parliament is not authorized to cut the powers and jurisdiction of the Supreme Court as defined by the constitution. But Parliament can extend the same.
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