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Procedure of Appointment of Judges
By - Vaibhav Shukla
Introduction
Judge is the most Paramount position in the Indian Judiciary and selection and appointment of a Judge is a crucial process which involves the Parliament and the President but we should know that there is almost no scope of political interference in the appointment of judges. Furthermore, once a person is appointed as a judge of the Supreme Court or High Court it is next to impossible to remove him or her from that position. A Judge can only be removed with an impeachment motion passed separately by the Parliament. Indian Constitution contains various provisions which deal with the appointment of Judges which have to be followed in every aspect of appointment.
There are primarily three Levels of Courts in India namely-
Supreme Court
High Courts
Lower Courts or District Courts
Procedure of appointment of Judges differs across the three courts. In this Article, We will understand the whole process of all the three courts.
Appointment of Judges in the Lower Courts/District Courts
In this part we will understand the full process of the appointment of the Judges in the Lower courts lesser population and area to cover and the jurisdiction is limited to the district level so the number of Judges appointed are according to the population of the district.
Provisions under Indian Constitution.Appointment of Judges in the lower courts is mentioned in Part 6 "The States" under Chapter 6 'Subordinate Courts' of the Indian Constitution. The concerned articles are from Article 233 to Article 237.
Qualifications
Article 233 of the Indian Constitution states the appointment of District Judges and states certain qualifications for a person to be appointed as a District Judge which are as follows:
A person should have a law practice of 7 years or more
A person should not be a working member of any union or state serviceRecommendation of the concerned High Court for the appointment is mandatory.
Procedure
Article 233 (1) states that the appointment is done after consulting the Governor of the State and also the Judges of the High Court exercising jurisdiction over the State.
In the appointment of the judges at the district court, High Court plays an important role as Article 235 of the Indian Constitution provides powers to the High Courts to have control over the persons in the judicial service in the district court and other subordinate courts.
Salaries
Salary of the Judges of the district court is decided by the High courts of the state carrying jurisdiction over all courts of the state.
Appointment of Judges in the High Courts
The High Court has an enlarged jurisdiction and more number of Judges as compared to the lower courts or district courts. The Number of Judges in a High Court generally depends on the population of the State.
Provisions under Indian Constitution Appointment of Judges in the High courts is mentioned under Part 6 "The States" under Chapter 5 'The High Courts in the States' of the Indian Constitution. The concerned articles are from Article 214 to Article 232.
Qualifications
Article 217 of the Indian Constitution deals with the appointment of Judges of the High court and Clause (2) mentions certain qualifications for a person to be appointed as a High Court Judge which are as follows:
The person appointed must be a citizen of India
The person appointed should have held a judicial office in the territory of India for at least ten years or;
The person appointed should have been an advocate in the High Court for at least ten years.
Procedure
Procedure of appointment of judges of the High court is stated in the Article 217 of the Indian Constitution which states the Judge of the High Court is appointed by the President by warrant under his hand and seal in accordance with advice tendered by the Chief justice of India and the Governor of the state.
Salaries
Provisions regarding the Salary to the appointed Judges of the High court are provided under Article 221 and are determined by the parliament by law and the second schedule of the constitution. Judges also qualify for the pensions and allowances which are again decided by the parliament.
Appointment of Judges in the Supreme Court
The Supreme Court of India is one of the powerful courts in the world. It decides the cases between the union and state and inter-state, it is known as the guardian of the constitution. Judges of the Supreme Court have a great responsibility on their shoulders.
Number of Judges of the Supreme Court initially was 7 but with latest amendment act of 2019 it has gone up to 33 judges excluding Chief Justice of India.
Provisions under Indian Constitution
Appointment of Judges in the Supreme courts is mentioned under Part 5 "The Union" under Chapter IV 'Union Judiciary' of the Indian Constitution. The concerned articles are from Article 124 to Article 147.
Qualification
Qualifications for the appointment as the Judge of the Supreme Court are stated in Article 124 of the Indian Constitution and the person who satisfies all the necessary qualifications mentioned here is recommended for the appointment.
The person who is recommended must be a citizen of India;
The Age limit of the person should be 65 or below;
Person must have been a judge of one or more High courts continuously for five years or must have been an advocate in any high court for at least ten years;
The recommended person must be a distinguished jurist in the opinion of the President.
Procedure
Provisions of the Article 124 deal with the composition of the Supreme Court and the procedure of the appointment of the Chief Justice of India and its Judges. There is a collegium system in the country which is followed for the appointment of the Judge.
Collegium system in India
It is a system under which appointments and transfers of judges are decided by a forum of Chief Justice and four senior most judges of the Supreme Court. There is no mention of the Collegium system in the original constitution of India or in any of its successive amendments.
Salaries
Salaries of the Judges of the Supreme Court are determined by Parliament by Law and if there are no clear provisions on it then the salary mentioned in the second schedule of the Indian Constitution must be provided. Article 125(1) states the provisions relating to the salaries of the Judges of the Supreme Court.
Landmark Judgments on the Appointment of Judges
SP Gupta v. Union of India, 1981 (First Judges Case)
This case declared that primacy of recommendations of Chief Justice of India to the president can be refused on logical reason basis.
Supreme Court Advocates-on-Record Association (SCARA) v. Union of India, 1993 (Second Judges Case)
The Supreme Court with a nine-judge Constitution Bench overruled its previous Judgment delivered in First Judges Case1982 and introduced the collegium system for appointing the Judges of the Supreme and the High Courts, holding that consultation really meant occurrence in appointments.
Third Judges Case (1998)
The Collegium system was expanded to a 5 member body on the recommendation of the President of India which should comprise Chief Justice of India and four of his senior most colleagues.
Supreme Court Advocates-on-Record Association (SCARA) v. Union of India (2015)
With this Judgment, the impugned Amendment Act was struck down as declaring it unconstitutional. Pre-existing scheme of appointment of the Judges was revived and also declared the National Judicial Appointments Commission Act (2014) as unconstitutional and void.
Conclusion
The Indian Judiciary is one of the powerful pillars of the Indian Democracy and the courts across the country play a vital role in upholding the spirit of democracy across the country. Judges who are presiding officers of these Courts have the ultimate role in this with power of the Judgment and this is the reason that whenever Injustice takes place, Citizens of the country turn to the Courts only for the Justice.Therefore the Judges who truly serve the law and embark Justice, be them of any court whether the Supreme court or Lower court of a district, have huge burden on their shoulders and the procedure to appoint the them should be fair and just without any biasness toward any political party or any religion, caste, creed so that the working of the courts can be carried out in an efficient and effective manner as it always have been.
Reference
Book on Indian Constitution by M. Laxmikanth
https://indiankanoon.org/doc/1294854/ SP Gupta v. Union of India (First Judges Case 1981)
https://indiankanoon.org/doc/753224/ Supreme Court Advocates-on-Record Association (SCARA) v. Union of India (Second Judges Case 1993)
https://indiankanoon.org/doc/543658/ Third Judges Case (1998)
https://indiankanoon.org/doc/66970168/ Supreme Court Advocates-on-Record Association (SCARA) v. Union of India (2015)
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