Appointment, Retirement and Removal of Judges

The method of appointment of judges at the Supreme Court, High Court and District Courts has been enshrined in the Constitution of India. According to Article 124 of the Constitution, 'every judge of the Supreme Court shall be appointed by the President 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'.

Appointment of Judges

Constitutional Mandate

The method of appointment of judges at the Supreme Court, High Court and District Courts has been enshrined in the Constitution of India. According to Article 124 of the Constitution, 'every judge of the Supreme Court shall be appointed by the President 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'.

The Article also provides that in case of appointment of a judge other than the Chief Justice of India, the Chief Justice must be consulted. The Article further provides for the qualifications required to become a judge at the Supreme Court. These qualifications include:

Qualifications Required for Supreme Court Judge

Citizenship of India
Has been for at least five years a Judge of a High Court or of two or more High 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 a distinguished jurist in the opinion of the President

Similarly, the procedure for appointment of judges at the High Court has been enshrined in Article 217 of the Constitution. This Article prescribes that every Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State; and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court concerned.

Qualifications of a High Court Judge

Citizenship of India
Has for at least ten years held a judicial office in India; or
Has for at least ten years been an advocate in a High Court or of two or more such Courts in succession.

For the district and sub-ordinate Courts or the lower judiciary in India, the procedure for appointment is mentioned in Article 233 of the Constitution. Appointment of district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

Qualifications for Appointment as District Judge

Member of judicial service of the State; or
Any person who has had a minimum of seven years of practice as a lawyer at bar.

Current Practice in the Appointment of Judges

Despite a clear Constitutional mandate, the appointment of Judges in practice remains a complex process. There has been an extensive debate over the appointment procedure of judges which has seen alterations in actual practice. At present, the appointment at the Supreme Court and the High Court follows a collegium model, which is a judicial creation through case-laws, even though not constitutionally mandated.

Under the collegium model for appointment of judges of the Supreme Court, the Chief Justice of India consults four senior most judges of the Supreme Court. The Chief Justice of India sends his recommendations to the Union Minister of Law and Justice, who then puts up the same to the Prime Minister. The Prime Minister will then advise the President. For High Courts, the collegium comprises of the Chief Justice of the High Court and two senior most judges of the High Court. The Chief Justice conveys his recommendations to the Chief Minister of the State and the Governor of the State, who in turn send their views directly to the Union Minster of Law and Justice. The complete material is then forwarded to the Chief Justice of India, who in consultation with a collegium of two Judges of the Supreme Court, would send his recommendations to the Union Minister of Law and Justice. The Union Minister of Law and Justice then puts up the same to the Prime Minister who will advise the President in the matter of appointment.

The seniority of a Judge plays a vital role in his or her elevation or appointment as Chief Justice. For initial appointment as a Judge in a High Court for those from the lower judiciary inter-se seniority does matter; and for elevation of advocates from the bar, relative merit matters. The collegium model, considers the relative merits of those Judges and advocates in the zone of consideration for elevation with reference to their judgements and cases.

Retirement of Judges

The retirement age for a Supreme Court judge is 65 years. Similarly, a High Court judge continues in his office, till the retirement age which is 62 years. The age of retirement of District Court judges is determined by their respective State Government under special service rules.

The retirement age of judges as specified in the Constitution has been subject to intense debate in India. There lies a pending bill in the Parliament (114th Amendment Bill, 2010) which proposes to increase the retirement age of High Court judges from 62 to 65. However, since the bill is still being debated in the Parliament, it has no legal effect. Similarly, the Venkatachalliah Committee formed to review the working of the Constitution (2000) suggested to increase the retirement age of Supreme Court judges from 65 to 68. These proposals have been made in the light of global comparative standards, followed to determine the retirement age for the judges.

Retirement Age in other Countries: There is no retirement age for Supreme Court judges in the United States. In the High Court of Australia, the retirement age is 70. The Supreme Court of Canada has fixed the retirement age of their judges as 75. Similarly in the UK Supreme Court, the retirement age is 75, while the Constitutional Court of South-Africa follows the age of 70 or after 12 years of the service of the judge.

Removal of Judges

Judges of the Supreme Court and the High Courts can be removed through a process called as impeachment. The process for removal of the judges is exactly the same for both the Supreme Court and the High Courts. This has been stated explicitly in the Constitution of India.

As a part of the process of impeachment, an inquiry is made into the grounds of removal of the judges. The grounds for removal include:

Proven misbehaviour
Incapacity

The inquiry into these grounds is made under the Judges Inquiry Act, 1986. This inquiry is done by a committee of three members, of which two are judges - one from the Supreme Court and second is the Chief Justice of High Court. If the complaint is against the high court judge then two judges from the Supreme Court constitute this Committee.

Based on the findings, the recommendation to impeach the judge has to be made by the Chief Justice of India to the President of India. If it is accepted then, the proposal of impeachment must be introduced in the Parliament for discussion by 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha. The copy of the proposal is given to the concerned judge before the proceeding starts in the Parliament of India.

The impeachment process in the Parliament is governed under Article 124(4) of the Constitution. Under this scheme, the motion of impeachment has to be passed by the two-third majority members present and voting must be done separately in the each house of the Parliament. If the motion is passed then the formal announcement is done by the President of India. Therefore, the overall process of impeachment is lengthy and complex.

Example: In the history of Indian judiciary, this process has been successful only once. Justice Soumitra Sen, the Chief Justice of Calcutta High Court was impeached in 2011 for misappropriation of funds. Previously in 1991, the impeachment process was initiated against Justice V Ramaswamy, Chief Justice of Punjab and Haryana High Court but did not succeed on falling short of the two-thirds voting criteria.

As to the removal of judges in the lower judiciary, a District Judge or an Additional District Judge can be removed from his office by the State Government in consultation with the High Court.