The Supreme Court of India: Constitution, Judges and Tenure

So the words in the printed text are not the law. What is the law is the position before the amendment, "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", because the judgment held that with the amendment struck down the provisions it had sought to amend automatically revive and the status quo ante is restored. The chapter on appointments works out what "consultation" now means.

A warrant under the President's hand and seal is the formal instrument of appointment, and it is the same technique as the "warrant under the Royal Sign Manual" of section 200(2) of the Act of 1935.

Sixty-five is the retiring age, and it too is the figure in section 200(2) of that Act.

Article 124(2), provisos: resignation and removal

A Judge may resign by writing under his hand addressed to the President.

A Judge may be removed from his office in the manner provided in clause (4), and clause (4) is one of the two or three most important provisions in Module III.

Article 124(4): a Judge shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

Take that apart, because each element is a protection.

• Only the President may remove, and only on an address; the executive cannot dismiss a judge.
• Both Houses must address, so one House cannot do it.
• Two majorities are required in each House: of its total membership, and of two-thirds of those present and voting.
• In the same session, so the two addresses must be part of one proceeding.
• And only on proved misbehaviour or incapacity: not on the ground that the judge's decisions are unpopular, and "proved" imports an inquiry, which the Judges (Inquiry) Act 1968 provides for.

Set that beside section 4 of the Indian High Courts Act 1861, under which a judge held office during Her Majesty's pleasure, and beside section 220(2) of the Act of 1935, which gave a retiring age but no removal procedure. Article 124(4) is the first time in this book that the terms on which a judge can be got rid of are written down and made difficult.

Article 124(5) empowers Parliament to regulate the procedure for the presentation of an address and for the investigation and proof of misbehaviour or incapacity.

Article 124(3): who may be a judge

A person is qualified for appointment only if he is a citizen of India and:

• has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
• has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
• is, in the opinion of the President, a distinguished jurist.

Three routes, and it is worth noticing what has happened to the qualifications since 1861. The Act of 1861 had four classes and a two-thirds rule reserving a third of the bench to English barristers and a third to the Covenanted Civil Service. The Act of 1915 restated them. The Constitution reduces them to three, removes every reference to nationality except citizenship, removes the reserved proportions, and adds the distinguished jurist, a category never yet used.

Article 124(6) requires the oath or affirmation in the form in the Third Schedule, and article 124(7) provides that a retired Judge of the Supreme Court shall not plead or act in any court or before any authority within the territory of India. That last provision is a guarantee of independence of a kind Module I would have found useful: a judge who cannot practise afterwards has nothing to gain from pleasing a future client.

Articles 125 to 128

125: the Judges' salaries are as specified in the Second Schedule, and their privileges, allowances, leave and pension are as Parliament may from time to time determine, provided that neither shall be varied to his disadvantage after his appointment. That proviso is section 104 of the Act of 1915 and section 201 of the Act of 1935, and it is one of the classic guarantees.

126: when the office of Chief Justice is vacant, or the Chief Justice is unable to perform his duties, they shall be performed by such one of the other Judges as the President may appoint. Compare section 202 of the Act of 1935, where the appointment was by the Governor-General in his discretion.

127: ad hoc Judges. If there is not a quorum of Judges available to hold or continue a session, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request a High Court Judge duly qualified for appointment to the Supreme Court to attend as an ad hoc Judge. (The printed text of this article also carries words inserted by the Ninety-ninth Amendment and struck down with it.)

128: attendance of retired Judges. The Chief Justice of India may, with the previous consent of the President, request a person who has held office as a Judge of the Supreme Court, or of the Federal Court, or of a High Court and is duly qualified for appointment to the Supreme Court, to sit and act as a Judge of the Supreme Court, and while so sitting he has all the jurisdiction, powers and privileges of a Judge but is not otherwise deemed to be one.

Article 128's mention of the Federal Court is a small piece of history embedded in the text: in 1950 there were living judges of that court, and the Constitution allowed the new Supreme Court to call on them.

A worked example

A judge of the Supreme Court is accused of misconduct in 1998. What has to happen before he can be removed?

1. A motion for an address must be admitted in either House, with the number of members the Judges (Inquiry) Act requires.
2. A committee inquires and must find the misbehaviour or incapacity proved. Article 124(4) says "proved", and the word does the work.
3. Each House must then pass an address, by a majority of its total membership and by two-thirds of those present and voting.
4. Both addresses must be presented to the President in the same session.
5. The President then passes an order of removal.

Notice that at no point can the Government remove him, and that the two majorities in step 3 mean that removal requires a degree of cross-party agreement. Compare a High Court judge in 1900, holding office during His Majesty's pleasure.

What beginners get wrong

"The Constitution fixes the number of Supreme Court judges." It fixes a minimum, the Chief Justice and seven others, and leaves the number to Parliament by law. Do not quote a figure from the Constitution.

"Judges are impeached." The Constitution does not use the word impeachment for judges; it is used for the President under article 61. Article 124(4) speaks of removal by an order of the President after an address of each House on the ground of proved misbehaviour or incapacity. Use the Constitution's words.

"Article 124A provides for the National Judicial Appointments Commission." It is printed in the Constitution and it is not law: the Ninety-ninth Amendment that inserted it was struck down on 16 October 2015, and the print carries a footnote saying so. The pre-amendment text revives.

"A distinguished jurist has been appointed under article 124(3)(c)." The category exists and has not been used. Do not assert an example.

Limits and criticism

Article 124 is a strong provision and it has one visible weakness and one invisible one.

The visible weakness is that the appointment clause, as it now stands after the striking down of the Ninety-ninth Amendment, says only "after consultation", and everything that governs how judges are actually appointed comes from three judgments rather than from the text. The chapter on appointments sets that out. Whatever one thinks of the collegium, it is an unusual state of affairs for the most important appointing power in a constitution to be governed by case law.

The invisible weakness is that a removal procedure which requires two special majorities in both Houses in the same session is, in practice, nearly impossible to complete, and no judge of the Supreme Court has been removed under it. A protection that cannot be used against a judge who deserves it is a protection with a cost, and the cost is that the only real discipline is the profession's opinion and the judge's own conscience. That is the price of independence, and article 124 pays it deliberately.

Quick revision

• 124(1): a Chief Justice of India and, until Parliament prescribes more, not more than seven other Judges.
• 124(2): appointment by the President by warrant under his hand and seal; office until sixty-five; resignation by writing to the President. The words about the NJAC are printed but were struck down on 16 October 2015, and the earlier text revives.
• 124(3): citizen, and five years a High Court Judge, or ten years a High Court advocate, or a distinguished jurist in the President's opinion.
• 124(4): removal only by order of the President after an address of each House, by a majority of the total membership and two-thirds of those present and voting, in the same session, on proved misbehaviour or incapacity.
• 124(7): a retired Supreme Court Judge shall not plead or act in any court or before any authority in India.
• 125: salary in the Second Schedule; nothing to be varied to his disadvantage after appointment.
• 126: acting Chief Justice appointed by the President. 127: ad hoc Judges. 128: retired Judges, including former Judges of the Federal Court.

Test yourself

1. State the procedure for removing a Judge of the Supreme Court. An order of the President passed after an address by each House of Parliament, supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting, presented to the President in the same session, on the ground of proved misbehaviour or incapacity.

2. What are the qualifications for appointment? Citizenship of India, and either five years as a Judge of a High Court or of two or more such Courts in succession, or ten years as an advocate of a High Court or of two or more such Courts in succession, or being in the opinion of the President a distinguished jurist.

3. Why do the words "on the recommendation of the National Judicial Appointments Commission" appear in the printed article 124(2)? Because the Constitution (Ninety-ninth Amendment) Act 2014 inserted them, and the Supreme Court struck that amendment down on 16 October 2015. An amendment that is struck down is not repealed, so the printed text keeps the words with a footnote recording the judgment, while the law in force is the pre-amendment text, which the judgment held revives.

4. Name three provisions of articles 124 to 128 that protect judicial independence, and say what each does. Article 124(4), which makes removal possible only by an address of both Houses on proved misbehaviour or incapacity; article 125, which forbids any variation of a Judge's salary, privileges or pension to his disadvantage after appointment; and article 124(7), which forbids a retired Judge to plead or act in any court or before any authority in India.

5. Which provisions of the Government of India Act 1935 do articles 124 and 125 descend from? Section 200, which created a Federal Court of a Chief Justice of India and other judges appointed by warrant under the Royal Sign Manual holding office until sixty-five; and section 201, which forbade any variation of a judge's salary, leave or pension to his disadvantage after appointment.