POLITY

Appointment & Removal of Judges

Appointment & Removal of Judges, Independence of Judiciary

What is Independence of Judiciary?

Separation of Powers - 3 main branches of the State, namely the Legislature, Executive and the Judiciary; each endowed with separate powers and functions, such that the operation of one is not subservient to the other. Thus each wing of the State is independent and autonomous in itself.
Courts of the country not answerable to any other branch of the Government.
Judiciary can serve as an unbiased third party in the adjudication of cases.
Freedom in appointment of members of the higher judiciary.

Specific instances wherein bias was reflected? (to build context)

During the era of the Emergency, wherein the State dictated the functioning of the Courts.
Three senior judges were superseded in the appointment of Justice A.N. Ray as CJI.
Government returned the recommendation for elevation of Justice KM Joseph, Uttarakhand High Court to the Supreme Court.
Justice Ranjan Gogoi's appointment to the Rajya Sabha after several pro-government decisions by the Supreme Court.

Since when is Independence of Judiciary part of Basic Structure? (SC Judgement)

Independence of the Judiciary declared as being part of the Basic Structure of the Constitution in SP Gupta vs. Union of India (1981), popularly known as the First Judges Case.
Reaffirmed by the Supreme Court in the case of Supreme Court Advocates-on-Record vs. Union of India (1987), popularly known as the Second Judges Case.

Impact of appointments and removals on Independence of Judiciary?

The current system of appointment of judges is primarily controlled by the Judiciary itself.
The Collegium system ensures that senior members of the Higher Judiciary are directly involved in the appointment of Judges to the Higher Judiciary with minimal to no interference from the Legislature or the Executive.
The recommendations of the Collegium are customarily accepted by the President. This ensures that the Independence of the Judiciary remains sacrosanct.
However, given that the President always acts on the advice of the Council of Ministers, the Government does play a role in the appointment of Judges. [e.g. of when recommendation not followed - Justice KM Joseph of Uttarakhand High Court, Justice Krishna Bhat (sessions judge)]
Process of removal of judges rests entirely with the Parliament. This acts a measure for checks and balances within the wings of the State. However, given that the process of impeachment of a judge is extremely tedious, has hitherto never occurred. Thus Independence of the Judiciary maintained.

How are judges appointed and removed?

Appointment of Judges

Judges of the Supreme Court (SC) as well as High Court (HC) are appointed by the President of the country [SC Judges under Article 124 (2) and HC Judges under Article 217 (1)].
The Chief Justice of India (CJI) is appointed by the President, in consultation with judges of the SC as well as the HCs. However, as per convention, usually, the senior most judge of the SC is appointed as the CJI.
The Chief Justice of a HC is appointed by the President, in consultation with the CJI and the Governor of the state. In HCs too, convention dictates that the senior most judge of the HC is appointed as the Chief Justice.
The process for appointment of judges of the SC was streamlined in the Third Judges Case of 1998, which established a Collegium, consisting of the 4 senior most judges of the Supreme Court excluding the CJI.
The Collegium recommends names to the President, who then appoints the recommended persons as judges of the SC.
Judges of the HC are appointed by the President on the basis of recommendations made by a Collegium consisting of 2 of the senior most judges of the SC excluding the CJI and in consultation with the Chief Justice of the respective HC.
The qualifications required for SC and HC judges -

For SC -

Must be a citizen of India; and

Judge of a High Court for 5 years; or
10 years' experience as a practicing advocate of a HC; or
Distinguished jurist as per the President

For HC -

Must be a citizen of India; and

Holding any judicial office for 10 years; or
10 years' experience as a practicing advocate of a HC.
The current process reflects plurality and concurrence in the system of appointment of judges.

Current Affairs: The Parliament enacted the Supreme Court (Number of Judges) Amendment Act, 2019, pursuant to which the number of SC judges increased from 31 to 34.

Removal of Judges

Judges of the SC as well as the HC are removed by President upon the impeachment of the judge by the Parliament.
The Parliament may impeach a sitting judge on grounds of proved misbehaviour and incapacity.
The Judges Enquiry Act, 1968 provides the detailed procedure for removal of judges.
A judge is impeached by the Parliament by way of a motion passed by a special majority of the members of the House, i.e. two-thirds majority of members present and voting such that the said number is greater than half of the total strength of the House.

Why does India have such a process?

Process of appointment and removal of the Judges of the Supreme Court and High Courts is reflective of the separation of powers between the three wings of State
System of inter se checks and balances between wings of Government in place within the constitutional machinery of the country, where no one wing of the State becomes vested with ultimate power.

What are the primary problems in the current process?

Primary problem - Judiciary appoints itself - possibility of backdoor politics,
lack of transparency, objectivity and accountability.
lack of detailed and specific guidelines for appointment of judges further
process for impeachment of judges is extremely detailed and tedious, therefore, judicial appointments are rarely challenged.
[hollow independence of the judiciary. Although the President, as the Head of State, appoints the judges, the President is, in reality, bound by the recommendation of the Council of Ministers, or the elected representatives. Consequently, the Government/Executive is indirectly involved in the appointment of judges, and as a result, in the functioning of the Judiciary] Unsure if this is a legitimate problem.

Steps taken so far to better the process (NJAC, collegium reforms)

Process of appointment of judges was sought to be amended by the introduction of the National Judicial Appointment Commission Act, 2014.
The NJAC Act sought to address the criticisms that the Judiciary appointed itself, which led to lack of transparency and objectivity in the appointment process.
NJAC Act was struck down by the SC in the year 2015:
for failure to follow the due procedure laid down to enact such a statute, and
on account of the NJAC Act violating the Independence of the Judiciary, and resultantly the Basic Structure of the Constitution.
Simultaneously, the SC revived the Collegium System and subsequently directed the Government to supplement the Memorandum of Procedure for appointment of Judges of SC and HC taking into account factors like eligibility, transparency in the appointment process, establishment of Secretariat and Complaint mechanism in consultation with the SC Collegium/CJI.
Reforms to the Collegium System - such as online disclosure of meetings of the collegium.
Office of CJI brought under the scope of the RTI Act, by SC, which held that Office of CJI is a 'public authority'.

Recommendations of committees etc. as possible solutions?

14th Law Commission Report (LCR) suggested that every appointment to the High Court and the Supreme Court should be made with the concurrence of the CJI.
80th LCR suggested that the CJI consult three senior most colleagues during appointments
121st LCR recommended the constitution of National Judicial Commission
High Courts Arrears Committee in the 1970s suggested that exercise for filling the vacancy must start well in advance so that the selection can be finalized by the time the vacancy occurs. It recommended that if the recommendation made by the Chief Justice of the High Court is not dealt with within one month from the date of its receipt, the State Government must be deemed to have accepted the recommendation and action must be taken by the Central Government for expeditious disposal of the proposal.
The NCRWC recommended the setting up of NJC with detailed suggestions as to composition, procedure of appointment and even removal of judges.