Context
Recently, the Union Cabinet approved a proposal to increase the sanctioned strength of the Supreme Court from 34 to 38 judges, including the Chief Justice of India, to address the mounting pendency of cases and ensure timely justice. This decision necessitates an amendment to the Supreme Court (Number of Judges) Act, 1956, as Article 124(1) of the Constitution empowers Parliament to prescribe the number of judges by law.
1. Constitutional Provisions
- Article 124(2): Every Judge of the Supreme Court is appointed by the President by warrant under his hand and seal.
- Consultation: The President makes the appointment after consultation with such judges of the Supreme Court and High Courts as he deems necessary.
- Mandatory Consultation: In the case of an appointment of a judge other than the Chief Justice of India (CJI), the consultation with the CJI is obligatory.
2. Evolution of the Collegium and the NJAC
I. The Three Judges Cases (1982–1998)
- First Judges Case (1982): Ruled that “consultation” with the CJI did not mean “concurrence,” giving the Executive primacy.
- Second Judges Case (1993): Reversed the previous ruling, stating “consultation” means “concurrence.” This gave birth to the Collegium System (CJI + 2 senior-most judges).
- Third Judges Case (1998): On a Presidential reference, the SC expanded the Collegium to a five-member body (CJI + 4 senior-most judges).
II. The 99th Constitutional Amendment Act, 2014
- To bring more transparency and executive participation into judicial appointments, Parliament passed the 99th Constitutional Amendment Act and the National Judicial Appointments Commission (NJAC) Act, 2014.
- Purpose: It sought to replace the Collegium system with a more diverse body known as the NJAC.
- Composition of NJAC: It was designed as a six-member body comprising:
- The Chief Justice of India (Chairperson).
- Two senior-most judges of the Supreme Court.
- The Union Minister of Law and Justice.
- Two “eminent persons” (nominated by a committee of the PM, CJI, and Leader of Opposition).
III. The Fourth Judges Case (2015): Striking Down NJAC
- In the case of Supreme Court Advocates-on-Record Association v. Union of India (2015), a five-judge Constitution Bench struck down the 99th Amendment by a 4:1 majority.
- Violation of Basic Structure: The Court ruled that judicial independence is a part of the Basic Structure of the Constitution.
3. Qualifications for Appointment
To be eligible for appointment as a judge of the Supreme Court, a person must:
- Be a citizen of India.
- Have been a judge of a High Court (or High Courts in succession) for at least five years; OR
- Have been an advocate of a High Court (or High Courts in succession) for at least ten years; OR
- Be a distinguished jurist in the opinion of the President.
Note: The Constitution does not prescribe a minimum age for appointment as a judge of the Supreme Court.
4. Tenure and Removal
- Tenure: A judge holds office until they attain the age of 65 years.
- Resignation: A judge may resign by writing to the President.
- Removal: A judge can be removed only by the President on the ground of “proved misbehaviour” or “incapacity,” following an address by both Houses of Parliament supported by a special majority.
5. Acting Chief Justice and Ad-hoc Judges
- Acting CJI (Art. 126): Appointed by the President when the office of CJI is vacant or the CJI is unable to perform duties.
- Ad-hoc Judges (Art. 127): If there is a lack of quorum of permanent judges, the CJI can appoint a High Court judge as an ad-hoc judge of the SC for a temporary period, with the previous consent of the President and consultation with the Chief Justice of the concerned High Court.
Q. Consider the following statements regarding the Supreme Court of India:
Statement I: The Parliament has the power to increase the number of judges in the Supreme Court by enacting a law.
Statement II: The Constitution of India mandates that only a person who has served as a judge of a High Court for at least ten years is eligible for appointment as a Supreme Court judge.
Which one of the following is correct in respect of the above statements?
A) Both Statement I and Statement II are correct and Statement II is the correct explanation for Statement I.
B) Both Statement I and Statement II are correct but Statement II is not the correct explanation for Statement I.
C) Statement I is correct but Statement II is incorrect.
D) Statement I is incorrect but Statement II is correct.
Solution: C
• STATEMENT I IS CORRECT: Under Article 124(1), the power to increase the strength of Supreme Court judges rests with the Parliament. This is currently relevant due to the recent Cabinet approval to increase the strength to 38.
• STATEMENT II IS INCORRECT: According to Article 124(3), the requirement for a High Court judge to be elevated to the Supreme Court is five years of service, not ten years. The ten-year requirement applies to advocates of a High Court.
