How are judges weighed and measured?
How are judges weighed and measured?(Photo: Rhythum Seth/The Quint)
  • 1. Appointment of Supreme Court Judges Under the...
  • 2. Meaning of “Consultation” and Role of the Collegium in...
  • 3. NJAC – Government Tries (and Fails) to Change Appointment...
  • 4. The Memorandum of Procedure Controversy
  • 5. Removal of Supreme Court Judges: Impeachment
  • 6. Have Any Judges Ever Been Impeached?
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.

  • 1. 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.
    How are judges weighed and measured?
    Stylized representation of the Chief Justice’s courtroom in the Supreme Court
    (Photo: The Quint)

    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.

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