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How Are Judges of the Supreme Court Appointed and Removed?

How exactly are judges of the Supreme Court of India appointed? Does the Government get a say in their appointment? Can they be removed from office? And has this ever happened?

These questions have seen a long and chequered history, that saw the Judiciary face off against what they perceived as attempts by the Executive to intervene, in order to assert their independence. Recent events have only highlighted this conflict, including the brewing battle over appointment of Justice KM Joseph, and even the letter released by four senior judges of the Supreme Court to the public on 12 January 2018, which mentions the need to improve the process.

Here’s what the law says on appointment and removal, and why this has become controversial.

Appointment of Supreme Court Judges Under the Constitution of India

Article 124 of the Constitution of India describes the process for appointment and removal of judges of the Supreme Court. The currently sanctioned strength of the court is 26 judges (CJI + 25).

Who is Eligible to Become a Judge of the Supreme Court?

According to Article 124(3), the following people can become a Supreme Court judge:

  1. (1) A High Court judge who has held the post for five years or longer (like the current CJI, Dipak Misra);
  2. (2) An advocate who has practiced in a High Court (or the Supreme Court) for ten years or longer (for example Justice Rohinton Nariman); and
  3. (3) A distinguished jurist – technically this could include a scholar (like, say, Upendra Baxi), though no judge has ever been appointed on this basis.
Stylized representation of the Chief Justice’s courtroom in the Supreme Court

The general rule of thumb when it comes to appointing existing High Court judges is seniority – more senior judges in these courts should be considered for elevation to the Supreme Court. However, where a particular judge has demonstrated exceptional ability or character, the order of superiority can be superseded. The reasons behind that particular judge being appointed need to be recorded in such cases.

Who Appoints the Judges?

Under this Article, the judges of the Supreme Court are to be appointed by the President of India.

However, unlike the procedure followed in other countries, such as the USA, the appointment of Supreme Court judges in India happens with the involvement of the Judiciary. Article 124(2) says that the President shall appoint the judges:

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.

For the appointment of any judge of the Supreme Court apart from the CJI, the Article also says that the Chief Justice of India must be consulted.

Meaning of “Consultation” and Role of the Collegium in Appointments

Initially, the fact that Article 124 only required a “consultation” with the judges (including the CJI), meant that the Central Government had the final say, and could reject the views of the judges when it came to deciding who would be appointed to the top court. The Supreme Court itself upheld this back in 1981 in the First Judges Case.

In 1991, a nine-judge bench of the Supreme Court changed this up in the Second Judges Case, holding that the word “consultation” should be read as “concurrence” and laid out a new set of principles for appointments. Under these new principles, the CJI was to have primacy when it came to judicial appointments, with the consultation of the next two senior-most judges of the Supreme Court. Thus was born: the Collegium.

CJI Not Sole Decision-Maker

In 1998, the then President KR Narayanan made a reference to the Supreme Court to settle the question once and for all. Questions had arisen as to whether the “consultation” needed to take place with the Collegium/other judges or if the opinion of just the CJI was enough. Another nine-judge bench set out the conclusive position in 9 guidelines, in the Third Judges Case.

The Collegium was expanded to include the CJI and the next four (up from two) senior-most judges. It was concluded that the CJI could only recommend judges for appointment after consultation with the other four judges, and any candidate has to be supported by a majority of the Collegium.

Collegium’s Recommendation Binding

Once the Collegium makes a recommendation to the President, the President can either accept it or send it back to the Collegium for reconsideration. If the Collegium once again recommends that candidate for appointment, the President is bound by the recommendation.

The final position is thus that even though the formalities need to be performed by the President, the actual decision-making power when it comes to appointment of Supreme Court judges rests with the Collegium.

NJAC – Government Tries (and Fails) to Change Appointment Procedure

The Judges Cases effectively took away the powers of the Executive to play a role in deciding who was appointed as a Supreme Court judge. The NDA in particular have taken exception to this, and have made it a priority issue during both their tenures in power. The Justice Venkatachalaiah Commission report in 2002 suggested replacing the Collegium with a National Judicial Commission, but its recommendations could not be implemented in time.

NJAC Introduced and Struck Down (the NJAC Judgment)

In 2014, they successfully introduced and passed the 99th Amendment to the Constitution and the National Judicial Appointment Commission (NJAC) Act 2014. This was supposed to lead to the creation of the NJAC, a six-member commission that would henceforth recommend candidates to the President.

The make-up of the commission was meant to ensure that the Judiciary wouldn’t get sole control over appointments by including the Law Minister and two “eminent persons” decided by the PM, Leader of Opposition and CJI together. Only three judges (CJI + 2 others) were automatically part of the commission.

The 99th Amendment and the NJAC Act were challenged in the Supreme Court. In October 2015, it held (by a majority of 4:1) that they were unconstitutional because they violated the basic structure of the Constitution. This meant that the NJAC system was abolished, and appointment of judges would continue as per the old Collegium system.

The Memorandum of Procedure Controversy

Even though the NJAC was struck down, the government was not done just yet. After the Second and Third Judges Cases, a Memorandum of Procedure had been formulated to govern how the process of how the Collegium would make recommendations to the Executive.

The MOP for appointment of Supreme Court judges gives the Centre more than one opportunity to raise any concerns about the Collegium’s recommendations – first by the Ministry for Law and Justice, and then by the Prime Minister. But if the Collegium still wants to stick to its guns, the Executive cannot change anything.

The government therefore suggested that a new MOP be drafted and finalised for appointment of SC judges. In what sparked a massive controversy, they wanted the Executive to get a veto over candidates for national security reasons in this new MOP.

The Collegium, headed by the then CJI JS Khehar, rejected this proposal in March 2017 as reported by the Indian Express, after which the government has failed to respond. This has led to some confusion as to the status of the MOP – but the CJI in a November 2017 decision and the four senior judges in their January 2018 letter have made it clear that the old MOP was upheld in the NJAC judgment, and the government’s recalcitrance does not affect it.

However, even this has not led to a conclusive win for the Judiciary. Neither the old MOP nor the Constitution of India set out any time limits for the Executive to approve the Collegium’s recommendations. Consequently, the government has been able to frustrate the judges by just sitting on the files and doing nothing about them.

Removal of Supreme Court Judges: Impeachment

While the Judiciary still holds the cards when it comes to appointment of judges, they do not have a say when it comes to the removal of judges. The power to remove judges from their office rests with the President, who can only do so after receiving duly supported requests from Parliament.

The Supreme Court has formulated an ‘in-house procedure’ for complaints against judges of the High Courts or Supreme Court (though not the CJI himself), which provides for inquiries to be set up by the CJI. The CJI can recommend the removal of a judge to the President and Prime Minister, but this is not a necessary prerequisite for the impeachment process.

Parliament decides whether to impeach judges or not.

The Impeachment Process

The process of impeachment is described in Article 124(4) of the Constitution and the Judges (Inquiry) Act 1968. A judge can be removed on the ground of “proved misbehavior or incapacity”. Neither misbehaviour nor incapacity are defined, but would include any criminal activity or other judicial impropriety.

The steps are as follows:

  1. (1) An impeachment motion against the judge needs to be raised in either of the Houses of Parliament. The motion can only be admitted by the Speaker in the Lok Sabha or Chairperson (by default, the Vice-President) in Rajya Sabha if it has the required levels of support: 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha.
  2. (2) If the motion is admitted, a three-member committee is set up to investigate the allegations. The committee is made up of a Supreme Court judge, the Chief Justice of any High Court, and a ‘distinguished jurist’ (read judge/lawyer/scholar) nominated by the Speaker/Vice-President.
  3. (3) Once the committee prepares its report, this has to be submitted to the Speaker/Vice-President, who then also shares it with the other House.
  4. (4) Both Houses of Parliament then need to pass an ‘address to the President’ asking for the judge to be removed. To succeed, this needs to be passed by a 2/3 majority of the MPs present in each house during the vote, and must also exceed the 50 percent mark in each House.
  5. (5) If both addresses succeed, then the President can remove the judge from his position by Presidential Order.
The same process applies for all judges of the High Courts or the Supreme Court – including the CJI.

Have Any Judges Ever Been Impeached?

No judge has ever been removed from office by way of the impeachment process in India, whether of the High Courts or the Supreme Court.

The impeachment process has, however, been initiated against the following judges, though not successfully concluded:

Justice V Ramaswami, Supreme Court of India

Why? Allegations of corruption, that he overspent on his official residence when at Punjab & Haryana High Court.

What Happened? Impeachment process initiated in Lok Sabha in 1991, reached final stage in 1993, but failed to get 2/3 majority in Lok Sabha. Served out the rest of his tenure. Is the only SC judge to ever face impeachment.

Justice Ramaswami, the only Supreme Court judge to face impeachment thus far.

Justice Soumitra Sen, Calcutta High Court

Why? Misappropriation of funds and lying to the court (during time as a lawyer)

What Happened? Impeachment process initiated in Rajya Sabha in 2009, investigation upheld charges, Rajya Sabha passed address to impeach on 18 August 2011. Resigned on 1 September 2011, before Lok Sabha could vote. Proceedings became infructuous.

Justice PD Dinakaran, Chief Justice of the Sikkim High Court

Why? Allegations of corruption, land grabs and other abuses of office.

What Happened? Impeachment process initiated in Rajya Sabha in January 2010. Resigned on 29 July 2011. Proceedings became infructuous.

Justice SK Gangele, Madhya Pradesh High Court

Why? Allegationsof sexual harassment of a woman judge.

What Happened? Impeachment process initiated in Rajya Sabha in 2015, cleared of charges in December 2017.

Justice Pardiwala, Gujarat High Court

Why? Making improper remarks on reservations in a judgment.

What Happened? Impeachment process initiated in Rajya Sabha in December 2015. Judge removed offending paragraph before Vice-President accepted the motion.