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This article is written by M.S. Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) in School of law, SASTRA. This is an exhaustive article which deals with the various provisions related to appointment and transfer of Judges.

Introduction

Judiciary in our country is the main pillar of democracy which helps in the smooth functioning of democracy. Judges are the main aspects of the judiciary. It is mandatory that the judges have to be efficient in order for the judiciary to be successful. There are many famous judges in our country who have brought out a lot of changes through their judgments which led to the overall development of this country. Judges are respected in our country and people have lots of faith and hopes on them, thus it is necessary to make sure that the appointment of judges is proper and not biased. Various provisions of our Indian Constitution deals with the appointment of Judges which has to be followed in every aspect of appointment.

Appointment of Judges in the District Courts

Qualifications

Article 233 of the Indian Constitution deals with the appointment of District Judges. According to this article, there are certain qualifications for a person to be appointed as a District Judge, they are:

  • The person has to be in practice as an advocate or pleader for seven years or more;
  • The person should not be in working in any other services of the Union or the State;
  • The person has to be recommended by the High Court for employment.

Procedure for appointment

There are various procedures to be followed before the appointment of District Judges. According to Article 233, the appointment can be done only after consulting the Governor of the State and also the Judges of the High Court that is exercising jurisdiction in the State. 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. Article 233-A validates the appointment of Judges in the district court that was made before the commencement of the Constitution (Twentieth Amendment) Act, 1966 and they are held to be valid even though they are not in accordance with the provisions of Article 233 and Article 235.

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Appointment of Judges in the High Courts

Qualifications

There are certain qualifications which have to be fulfilled in order to appoint a person as a judge in the High Courts. The qualifications regarding the appointment are provided in Article 217. According to the Article,

  • 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;
  • The person appointed should have been an advocate in the High Court for at least ten years.

Procedure

Article 217 of the Indian Constitution provides the procedure regarding the appointment of judges in the High Courts. According to this Article,

  • The judges of the High Courts can be appointed only by the warrant of the President and his seal;
  • The appointment can be done only after consulting the Chief Justice of India and the Governor of the State;
  • The appointment of Judges other than the Chief Justice can be done after consulting the Chief Justice of the High Court;
  • The provisions under this article must be followed even while appointing the Additional Judges according to Article 224.
  • The person can hold the office as a judge until he is sixty-two years old;
  • The consultation must be very effective, that is all the necessary information about the person being recommended must be revealed and no information should be hidden in order to facilitate the appointment;
  • The Judges appointed must take an oath before the Governor of the State according to Article 219. The oath must be according to the form that is provided for the purpose in the Third Schedule.

Salary for the Judges appointed

Article 221 of the Indian Constitution provides various provisions regarding the salaries of High Court Judges. The salaries shall be determined by the Parliament by law and until the provision on the behalf is made, the salaries provided in the Second schedule must be followed. The article also says that the judges are entitled to receive pension and allowances which is decided by the Parliament and it varies from time to time.

Procedure for appointment of additional and acting judges

The appointment of additional judges is governed by Article 224 of the Indian Constitution. The President has the power to appoint additional judges. The State Government should obtain the permission and sanction of Central Government in order to create a post for additional judges and for appointing additional judges. Article 224 also deals with the appointment of acting judges. They are appointed for a period of three months. The members of the bar are not preferred for the appointment.

Appointment of Judges in the Supreme Court

Procedure

There are various procedures for the appointment of Judges in the Supreme Court. The appointment is governed by various provisions in the Indian Constitution. Article 124 of the Indian Constitution deals with the appointment of Chief Justice and Judges of the Supreme Court. The collegium system is still followed for the appointment of the Judges. Article 124 of the Constitution says only seven judges can be appointed in the Supreme Court and the appointment can be increased when the Parliament deems it to be necessary. The President has the power to appoint Judges after consulting the Chief Justice of India, the other Judges of the Supreme Court and also in certain cases other judges of the High Court. The Judges can hold office until they attain 65 years of age. Article 127 of the Indian Constitution deals with the appointment of ad-hoc judges in the Supreme Court. 

Qualification

Article 124 of the Indian Constitution provides various qualifications which have to be satisfied for the appointment. The person who satisfies all these necessary qualifications is only recommended. They are:

  • The recommended person must be a citizen of India;
  • They should not be above 65 years of age;
  • They must have been a judge of one or more High courts continuously for five years;
  • They must have been an advocate in the high court for at least ten years;
  • The recommended person must be a distinguished jurist in the opinion of the President.

Salary

The salaries of the Supreme Court judges is determined according to Article 125 of the Indian Constitution. The salary provided to the Supreme Court judges is high compared to the High Courts. The salary is determined by the Parliament by law and if provisions are not made clear the salary mentioned in the second schedule must be provided.

Appointment of acting Chief Justice and Ad Hoc judges

Article 126 of the Indian Constitution deals with the appointment of acting Chief Justice. The President can appoint other judges of this court as acting Chief Justice when the office of Chief Justice is vacant or they are unable to perform their duties due to various issues like health issues. Article 127 deals with the appointment of Ad Hoc judges. According to this Article, Ad Hoc judges can be appointed in various situations like when the quorum of the Judges of the Supreme Court are not available to hold or continue any session of the Court, then it is the duty of the Chief Justice to appoint Ad hoc judges with the consent of the President of India. 

Transfer of Judges

Transfer of Judges in the High Court

Article 222 of the Indian Constitution provides the transfer of Judges from one High Court to another. The same procedure is also followed even for the transfer of Chief Justice. The President has the power to transfer the Judges from one High Court to another. This transfer must be made only after consulting the Chief Justice. There is also a provision for providing a compensatory allowance to the Judges who are transferred in addition to their salary.

Landmark Judgments 

S.P Gupta v Union of India

Several writ petitions were filed in the various High Courts regarding the appointment of High Court Judges as well as the Supreme Court judges in the form of public interest litigation. These petitions were transferred to the Supreme Court using suo moto cognizance. The main issue was to decide whose opinion in the collegium should be given primary importance while appointing the judges. The majority opinion was that “the opinions of Chief Justice of India and opinions of the Chief Justice of High Court were merely consultative and that power of appointment solely resides in the Central Government ”. 

The meaning of the word consultation was also discussed in the case. The word consultation mentioned in Article 124 and Article 217 in relation to all consultees and final decision in the matter was left to the Central executive. The majority took an extremely literal and positivistic view of Article 217. The central government even after this judgment followed the old practice and no judge was appointed without the name being cleared by the Chief Justice of India.

Supreme Court Advocates on record association v. Union of India

This case was a landmark judgment which constituted a bench of nine judges. This case is popularly known as the Second Judges case. The main question that was decided was whether the independence of the judiciary is the basic feature of the constitution. The Supreme Court Advocates-on-Record Association and Senior Advocates filed writ petitions before the Supreme Court which questioned the constitutionality of the 99th Amendment and the NJAC Act. The petitions accused that the NJAC violated the basic structure of the Constitution by compromising the judiciary’s independence. The majority verdict the Chief Justice has the power to appoint and transfer Judges. The Chief Justice of India needs to consult only two senior-most judges during the time of appointment.

The first major issue which was in question was the meaning of the term “consultation” which is present in Article 124. The majority came to a conclusion that it means an “integrated, participatory and consultative process”. This leads to complete discharge of constitutional obligations on the part of constitutional functionaries. Various methods have been used by the Judges in the case to establish that “consultation” means occurrence or primacy notably among which are” The Chief Justice of India as a ‘PaterFamilias’ would be competent enough and has the best qualities to judge and differentiating the Indian constitution with other constitutions, our constitution does not vest absolute discretion in the hands of the executive. Hence, the Chief Justice of India cannot be considered as an inferior position.

In re Special Reference 1 of 1998

This is another famous case which decided various regarding the appointment of Judges. The main issue that was to be decided was whether the expression “consultation with the Chief Justice of India” which are mentioned in articles 217(1) and 222(1) requires consultation with a many Judges when the opinion of the Chief Justice of India is formed or does the single individual opinion of the Chief Justice of India constitute a valid consultation that comes under the meaning of the term “consultation” which is mentioned in the above said articles. The case also decided various other issues like whether any recommendations made by the Chief Justice of India without following the rules and the process of consultation are binding upon the Government of India.

It was held in the case that the expression “consultation with the Chief justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a majority of Judges in the formation of the opinion of the Chief Justice of India. The individual and personal opinion of the Chief Justice of India do not constitute a valid “consultation” which comes under the meaning of the term in the said Articles.

Conclusion

Judges are the most important part of the judiciary. It is important to ensure that the Judges are competent enough to handle various issues that arise every day. The appointment of Judges must be done properly and a lot of effort must be carried out while selecting the Judges. The Judges should not be transferred unnecessarily and the transfer must be done only when there is a proper reason. Judges should not be transferred for personal and political reasons. Thus the government and the judiciary must consider the appointment of Judges as a very important process and a lot of care must be taken.


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