Appointments, Training, Retirement & Removal of Judges Chapter Notes - Humanities/Arts PDF Download

Appointment of Judges

1. Constitutional Mandate- 

• Appointment of judges at the Supreme Court- According to Article 124 of the Constitution, 'every judge of the Supreme Court shall be appointed by the President 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'. The Article also provides that in case of appointment of a judge other than the Chief Justice of India, the Chief Justice must be consulted. The Article further provides for the qualifications required to become a judge at the Supreme Court. These qualifications include:
  i) Citizenship of India, and
  ii) Has been for atleast five years a Judge of a High Court or of two or more High Courts in succession; or 
  iii) Has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or 
  iv) Is a distinguished jurist in the opinion of the President 
• Appointment of judges at the High Court- It has been enshrined in Article 217 of the Constitution. This Article prescribes that every Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State; and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court concerned. The qualifications of a High Court judge includes: 
  i) Citizenship of India, and 
  ii) Has for at least ten years held a judicial office in India; or 
  iii) Has for at least ten years been an advocate in a High Court or of two or more such Courts in succession.
• District and sub-ordinate Courts or the lower judiciary in India- The procedure for appointment is mentioned in Article 233 of the Constitution. Appointment of district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. The qualifications for appointment as District Judge include: 
• i) Member of judicial service of the State; or 
  ii) Any person who has had a minimum of seven years of practice as a lawyer at bar. 

2. Current Practice in the Appointment of Judges- 

The appointment of Judges in practice remains a complex process. At present, the appointment at the Supreme Court and the High Court follows a collegium model, which is a judicial creation through case-laws, even though not constitutionally mandated. 

• Appointment of judges of the Supreme Court- The Chief Justice of India consults four senior most judges of the Supreme Court and sends his recommendations to the Union Minister of Law and Justice, who then puts up the same to the Prime Minister. The Prime Minister will then advise the President.
• Appointment of judges of the High Courts- The collegium comprises of the Chief Justice of the High Court and two senior most judges of the High Court. The Chief Justice conveys his recommendations to the Chief Minister of the State and the Governor of the State, who in turn send their views directly to the Union Minster of 15 Law and Justice. The complete material is then forwarded to the Chief Justice of India, who in consultation with a collegium of two Judges of the Supreme Court, would send his recommendations to the Union Minister of Law and Justice. The Union Minister of Law and Justice then puts up the same to the Prime Minister who will advise the President in the matter of appointment.

3. Tracing the Historical Debate on the Issue of Appointment of Judges- 

• As early as the 14 Law Commission Report under the chairmanship of M.C. Setalvad, India's first attorney general in 1958, these concerns were raised:
  i) The Commission noted the appointment or rejection of appointment of judges by the executive, in contrary to what the judiciary suggested, creating rather awkward situations. 
  ii) The Commission thus suggested on strengthening the process of consultation between the executive and the judiciary. 
• Later, a series of three judicial decisions popularly known as the Three Judges Cases helped in the development of the modern collegium system. 
  

• The first Judges case (1981) gave primacy to the Executive and stated that the CJI's recommendation to the President can be refused for cogent reasons. It gave vast powers to the Executive for the next 12 years, in making judicial appointments. 
• This however was modified in the second Judges case (1993). 'The Judgment held that the Chief Justice of India has primacy in the matter of appointments to the Supreme Court and the High Courts, and that an appointment 'has to be in conformity with the final opinion of the Chief Justice of India', while emphasising the desirability of consultation of the Chief Justice with other Judges. 
• The years that followed thus witnessed some confusion in the process of appointment as CJI made some unilateral appointments 16 and the role of the President was reduced to a mere approval. 
• Later in 1998, the Supreme Court in a Presidential reference (1998 advisory decision) emphasized upon the role of 'consultation' and held that the process of appointment of Judges to the Supreme Court and the High Courts is an 'integrated participatory consultative process', the collegium system is not constitutionally mandated and thus the legality of such a system invokes certain scepticisms. 
• To remove these concerns, an amendment has been proposed to the Constitution where the President shall appoint the judges on the recommendation of Judicial Appointments Commission (JAC). 
• The JAC aims to replace the collegium system with a more formal body. This Commission as proposed will be chaired by the Chief Justice of India and will have senior Supreme Court judges, besides the Union Law Minister, the Law Secretary as its convenor, and two 'eminent persons' nominated by a 'collegium' comprising the Prime Minister, Leader of Opposition and the Chief Justice of India. The Bill was introduced in the Rajya Sabha in August 2013.

Judicial Training

• National Judicial Academy is a government funded training institute constituted for the training of Supreme and High Court judges and judicial officers in India. 
• This body was founded in 1993 and is located in Bhopal, with a registered office in NewDelhi.
• It aims at suggesting judicial reforms and providing research support services for greater efficiency, fairness and productivity in judicial decisions.  
• The National Judicial Education Strategy (NJES) has been established in 2006 to provide judicial education to High Court judges, District Judiciary and State Judicial Academies. 
• The training consists of conferences, orientations, workshops on core judicial skills and administration and seminars on substantive law and justice.

Retirement of Judges

• The retirement age for a Supreme Court judge is 65 years. 

• Similarly, a High Court 17 judge continues in his office, till the retirement age which is 62 years. 

• The age of retirement of District Court judges is determined by their respective State Government under special service rules. 

• There lies a pending bill in the Parliament (114th Amendment Bill, 2010) which proposes to increase the retirement age of High Court judges from 62 to 65. However, since the bill is still being debated in the Parliament, it has no legal effect. 

• Similarly, the Venkatachalliah Committee formed to review the working of the Constitution (2000) suggested to increase the retirement age of Supreme Court judges from 65 to 68.

Removal of Judges 

• Judges of the Supreme Court and the High Courts can be removed through a process called as 'impeachment'. 
• As a part of the process of impeachment, an inquiry is made into the grounds of removal of the judges. The grounds for removal include: 
  (i) proven misbehaviour or 
  (ii) incapacity. 
• The inquiry into these grounds is made under the Judges Inquiry Act, 1986. 
• This inquiry is done by a committee of three members, of which two are judges - one from the Supreme Court and second is the Chief Justice of High Court. If the complaint is against the high court judge then two judges from the Supreme Court constitute this Committee. 
• Based on the findings, the recommendation to impeach the judge has to be made by the Chief Justice of India to the President of India.
• If it is accepted then, the proposal of impeachment must be introduced in the Parliament for discussion by 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha. 
• The copy of the proposal is given to the concerned judge before the proceeding starts in the Parliament of India. 

As to the removal of judges in the lower judiciary, a District Judge or an Additional District Judge can be removed from his office by the State Government in consultation with the High Court.