Appointment and Conditions of Office of Supreme Court Judges

At a Glance

• What it is How judges of the Supreme Court are appointed, paid, retired and removed
• Appointed by The President, in consultation with the judiciary
• Retirement At 65 years
• Removal By the President after an address by both Houses by special majority
• Exam link UPSC Prelims, Polity: Higher Judiciary

Where Does It Fit?

This is the second topic of the category on the Higher Judiciary. The way judges are appointed and removed is central to the independence of the judiciary.

Appointment

The judges of the Supreme Court are appointed by the President. The Chief Justice is appointed after consultation with such judges of the Supreme Court and high courts as the President deems necessary. The other judges are appointed after consultation with the Chief Justice and such other judges as the President deems necessary; consultation with the Chief Justice is obligatory. The meaning of consultation has been interpreted differently over time. In the First Judges case (S.P. Gupta, 1981) consultation was held not to mean concurrence. In the Second Judges case (1993) the Court reversed it and held that the Chief Justice’s advice is binding, after consulting two of the seniormost colleagues. In the Third Judges case (1998, a presidential reference) it held that consultation requires a collegium of four seniormost judges, and that if two judges give an adverse opinion the Chief Justice should not send the recommendation. The 99th Amendment and the NJAC Act of 2014 replaced the collegium, but in the Fourth Judges case (2015) the Court struck both down, restoring the collegium.

Appointment of the Chief Justice

From 1950 to 1973 the practice was to appoint the seniormost judge as Chief Justice. The convention was broken in 1973 when A.N. Ray was appointed superseding three senior judges, J.M. Shelat, K.S. Hegde and A.N. Grover, who resigned. They were superseded because of their judgment in the Kesavananda Bharati case. In 1977 M.U. Beg was appointed superseding H.R. Khanna, who also resigned after his dissent in ADM Jabalpur. The Second Judges case (1993) ruled that only the seniormost judge should be appointed Chief Justice.

Qualifications, Oath and Pay

A person must be a citizen of India and must have been a judge of a high court (or high courts in succession) for five years, or an advocate of a high court for ten years, or a distinguished jurist in the opinion of the President. No minimum age is prescribed. Before entering office, the judge makes an oath or affirmation before the President or a person appointed by the President, swearing to bear true faith and allegiance to the Constitution, to uphold the sovereignty and integrity of India, to perform the duties without fear or favour, affection or ill will, and to uphold the Constitution and the laws. Salaries, allowances, privileges, leave and pension are determined by Parliament and cannot be varied to the judge’s disadvantage except during a financial emergency. In 2018 the Chief Justice’s salary was raised from Rs 1 lakh to Rs 2.80 lakh per month and a judge’s from Rs 90,000 to Rs 2.50 lakh. Retired judges get a pension of 50% of last drawn salary.

Tenure and Removal

A judge holds office until 65 years, can resign by writing to the President and can be removed by the President on Parliament’s recommendation. A judge can be removed by an order of the President only after an address by Parliament has been presented in the same session, supported by a special majority of each House (majority of total membership and two-thirds of members present and voting), on grounds of proved misbehaviour or incapacity. The Judges Enquiry Act, 1968 regulates the procedure:

1. A removal motion signed by 100 members of the Lok Sabha or 50 of the Rajya Sabha is given to the Speaker or Chairman.
2. The Speaker or Chairman may admit or refuse it.
3. If admitted, a three-member committee of a Supreme Court judge or the Chief Justice, a high court chief justice and a distinguished jurist investigates.
4. If the committee finds the judge guilty, the House can take up the motion.
5. After a special majority in each House, an address is presented to the President, who passes the removal order.

No judge of the Supreme Court has been impeached so far. The first case was that of Justice V. Ramaswami (1991-1993), found guilty of misbehaviour by the inquiry committee but not removed since the motion was defeated in the Lok Sabha, with the Congress abstaining.

Why Is This Topic Important?

• Judges cases Four judges cases are asked regularly
• Removal procedure Numbers 100 and 50 are standard
• Supersession history Ray and Beg cases

What Came Next?

The next topic covers the original jurisdiction of the Supreme Court under Article 131.

Key People and Terms

• Consultation Interpreted as concurrence in 1993
• Collegium Group of senior judges recommending appointments
• Misbehaviour Ground for removal
• Special majority For address to the President
• Supersession Bypassing the senior judge

Exam Corner

Mains Angle

Questions on this topic usually ask about the appointment process. Use these points to add depth.

• Executive-judicial balance Evolution through judges cases
• Seniority convention Restored in 1993
• Removal difficulty Safeguard of independence
• NJAC invalidation Basic structure concern