Part V: The Union

The Union Judiciary

Article 124: Establishment and Constitution of the Supreme Court

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(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal [on the recommendation of the National Judicial Appointments Commission referred to in article 124A] and shall hold office until he attains the age of sixty-five years. A Judge may be removed from office in the manner provided in clause (4).

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and— (a) has been for at least five years a Judge of a High Court, (b) has been for at least ten years an advocate of a High Court, or (c) is, in the opinion of the President, a distinguished jurist.

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President after an address by each House of Parliament supported by a majority of members on grounds of misbehavior or incapacity.

Explanations

Article 124 of the Constitution of India establishes the Supreme Court as the highest judicial authority in the country, detailing its composition, appointment process, tenure of judges, and procedures for their removal. This article is central to the functioning and independence of India’s judiciary.

Clause-by-Clause Explanation

Clause (1) – Establishment of the Supreme Court

The Supreme Court of India initially consisted of a Chief Justice and seven other judges. The number has since been expanded to 33 judges through subsequent amendments, reflecting the growing demands on the judiciary due to an increasing population and caseload.

Clause (2) – Appointment of Judges

Judges of the Supreme Court are appointed by the President, initially based on consultations with senior judges. The Ninety-ninth Amendment (NJAC) proposed a new appointment method, but it was struck down in 2015, reinstating the collegium system.

Clause (3) – Qualifications for Appointment

To ensure quality, only individuals with significant legal experience as judges or advocates, or distinguished jurists, are qualified for appointment to the Supreme Court.

Clause (4) – Removal of Judges

Judges can only be removed by an address supported by two-thirds of both Houses of Parliament on the grounds of proven misbehavior or incapacity, safeguarding judicial independence.

Real-Life Examples

• In 1993, the impeachment motion against Justice V. Ramaswami failed despite allegations of financial misconduct, showcasing the difficulty of removing a Supreme Court judge.
• The landmark case of Supreme Court Advocates-on-Record Association vs Union of India (2015) struck down the NJAC, reinstating the collegium system for judicial appointments.

Historical Context

Article 124 was drafted based on the structure and role of the judiciary as seen in other Commonwealth nations, particularly the UK. The need for an independent and powerful judiciary in India was seen as essential for maintaining the rule of law and upholding the Constitution.

Judicial Interpretation and Precedents

The scope and provisions of Article 124 have been interpreted in numerous cases. In Kehar Singh vs Union of India (1989), the Supreme Court emphasized that judicial appointments must preserve the independence of the judiciary, and in the 2015 NJAC judgment, the Court reinforced the importance of the collegium system.

Legislative History

Article 124 of the Indian Constitution, initially introduced and discussed as Article 103 of the Draft Constitution, was adopted on May 23, 1949. Its provisions have evolved over time through various amendments, most notably expanding the number of judges and addressing the appointment process.

Debates and Amendments

During the debates on Article 103, multiple amendments were proposed regarding the composition, appointment, and tenure of judges. Mr. Tajamul Husain proposed adding the term "Supreme" before "Chief Justice" to clarify the position. Dr. B.R. Ambedkar defended the current structure, emphasizing the importance of balancing executive and judicial independence.

Mr. Sharma and Prof. Shibban Lal Saksena proposed giving Parliament a larger role in judicial appointments, while Prof. K.T. Shah suggested that the Council of States be consulted. These proposals were rejected in favor of preserving the executive's role with judicial consultation.

The age limit of 65 years was finalized after debates on extending or reducing the age of retirement. Post-retirement restrictions were also discussed, with Dr. Ambedkar opposing stringent restrictions on judicial employment after retirement.

The removal of judges was debated extensively, with proposals to involve the judiciary in the removal process. These were rejected, and the current process, requiring a two-thirds parliamentary majority, was retained to ensure judicial independence.

References

• The Constitution of India - Article 124, Establishment and Constitution of the Supreme Court.
• Supreme Court Advocates-on-Record Association vs Union of India (2015).
• Kehar Singh vs Union of India (1989).
• Constituent Assembly Debates - Discussions on Article 103 (Draft Article 103).