MANNE VAISHNAVI RAO
INTRODUCTION
India is a federal state with a three-tiered legal system consisting of the Supreme Court, High Courts, and Subordinate Courts. Despite establishing a federal system and the existence of Central Acts and State Acts in their respective areas, one of the distinctive features of the Indian Constitution is that it has traditionally provided for a single integrated system of courts to administer both Union and state legislation[1]. The Constitution of India determines the organization of the government, defines, delimits, and restricts the roles and activities of all government organs, including the judiciary, and the rules that govern their inter-relationships and checks and balances.
The Supreme Court and the High Courts of India bear a tremendous responsibility as custodians and watchdogs of the people’s fundamental rights and freedoms and their constitutional rights. The Higher judiciary has effectively maintained and protected people’s fundamental rights relying heavily on the Directive Principles.
WHO IS A JUDGE, AND WHAT IS THE TENURE OF A JUDGE?
A judge is a person who is appointed to preside over court proceedings. Judges must be fair and objective in their interpretations of the law’s meaning, importance, and implications. Judges must also acknowledge that justice is more than just reading the law; it also entails compassion and empathy for all parties involved.
The word ‘tenure’ usually means to be in possession of something. However, here the word tenure refers to the time period individual works as a judge. The Indian Constitution does not have a fixed tenure for a judge, but it depends on the retirement age for that particular office. A judge can end his tenure by even resigning from office by writing a letter to the President. At the suggestion of the Parliament, the President has the power to remove a judge from their office.
APPOINTMENT OF SUPREME COURT AND HIGH COURT JUDGES
The President of India has power under Article 124 of the Indian Constitution to appoint the Chief Justice of India (CJI) and even the judges of the Supreme Court. When a judge other than the Chief Justice of India is appointed, the President must consult the CJI. According to the provision, the power of appointment vests in the President. Of course, the President refers to the Executive, which includes the President acting on the recommendation of the Council of Ministers. The President has the power of appointing High Court judges under Article 217(1). However, he has to consult the Chief Justice of India, governor of that state and the Chief Justice of that High Court. The President with a warrant makes such appointments after consultation with the judges of Supreme and High Courts if he deems if it’s necessary.
CASE LAWS:
In the case of SP Gupta v. Union of India[2], which is known as the first of the ‘Three Judges cases’, it was stated that the President has the right to nominate a High Court Judge under the framework of Article 217. However, if there are divergent viewpoints, the President must weigh them after giving each one full regard before making a judgment on the issue. It was also held that the Chief Justice of India is not entitled to primacy in any case of divergent opinions. However, it was clarified that the President could deviate from the other constitutional authorities, namely the Chief Justice of India, the Chief Justice of the pertinent High Court, and the Governor of the State, for compelling reasons and take a different position. The idea of the Collegium system for the appointment of judges was first tabled in this case.
In theSupreme Court Advocates-on-Record Association v. Union of India[3], which is the second case in the ‘Three Judges cases’, the nine-judge bench had partly overruled the judgement given in the SP Gupta’s case, holding that in the event of a disagreement, the Chief Justice of India had primacy. In this case, the Supreme Court looked into who has the power to appoint judges to the Supreme Court and the High Courts under the Constitution. A majority decided that the Chief Justice of India must consider the views of the two senior-most judges of the Supreme Court when focusing his opinion as part of the consultative process, to ensure that the opinion is not solely his individual opinion but rather the collective opinion of some people at the apex level of the judiciary. It was even held that the CJI’s opinion should be decisive and nearly binding on the President.
In the case of appointment of judges for High Courts, it was held that one or more senior judges of the different High Courts, whose opinions were likely to be significant in the formation of the Chief Justice of India’s opinion, could be consulted by the CJI. The Chief Justice of the High Court’s view would be given the most weight, and the opinions of the other functionaries concerned would be given due importance. The Chief Justice of the High Court must form their opinion after hearing from at least two of the High Court’s most senior justices.
In Re Special Reference 1 of 1998[4], the third of ‘three judges cases’, the court explained the meaning of ‘consultation’ and it is “Consultation with the Chief Justice of India is defined under Articles 217(1) and 222(1) of the Indian Constitution as ‘consultation with a plurality of Judges in the formation of the Chief Justice of India’s opinion’. The Chief Justice of India’s individual view does not constitute ‘consultation’ within the meaning of the relevant provisions.”[5]
If there is any difference in the opinions between the President and the Chief Justice of India, then the CJI’s opinion prevails. The opinion of CJI doesn’t mean only his opinion, but it is the collegium’s opinion.
In India’s higher judiciary, judges have been nominated by a collegium of judges rather than the Executive since 1993. A judicial ruling in 1993[6] established the collegium system, which was reinforced by two more legal decisions in 1999[7] and 2015[8] (established from the three court cases). In a collegium, the Chief Justice of India is the head, and there will be four senior-most Supreme Court judges regarding the appointment of Supreme Court judges and two senior-most Supreme Court judges in regards to the appointment of High Court judges. The collegium system has been the subject of numerous legislative attempts, all of which have failed. The most recent effort, constitutional revisions creating the National Judicial Appointments Commission, was overturned by the Supreme Court in 2015.
REMOVAL OF JUDGES
A committee consisting of the Chief Justice of India and two senior-most Supreme Court justices will have sole authority to investigate accusations of aberrant behaviour of any kind and complaints of misbehaviour and incapacity against Supreme Court and High Court judges. Suppose the committee determines that the problem is severe enough to warrant a complete investigation or inquiry. In that case, it refers the matter to the committee [established under the Judges (Inquiry) Act, 1968] for a full investigation. The committee established under the Judges Inquiry Act is a permanent committee with a defined tenure and the composition specified in the Act. The President would appoint the inquiry committee in collaboration with the Chief Justice of India. If the committee, as mentioned earlier of judges advises that the judge be removed, it is customary for the judge to demit office himself as soon as possible. If he does not comply, the matter will be processed for submission to Parliament under Articles 124(4) and 217(1)(b). As by presidential order, a judge can be dismissed from his position. There should be an address given from the Parliament to him, and he should issue the removal order in that session itself. A special majority of each House of Parliament must approve the address. This method applies equally to Supreme Court and High Court judges, except that in the instance of a Supreme Court Judge, the judge against whom a complaint or investigation is ordered should not participate in any hearing touching him. It is also lawful for the Chief Justice of the High Court or the Chief Justice of India, in appropriate instances, to withdraw judicial activity from the judge in question when the inquiry committee makes a finding against him.
RETIREMENT OF SUPREME COURT AND HIGH COURT JUDGES
The act of leaving one’s job or occupation, as well as one’s active working life, is known as retirement. The retirement age of a Supreme Court judge is 65 years, and a High Court judge is 62 years. Any query about his age will be decided by Parliament’s authority and in the way it specifies.
CONCLUSION
Tenure of a Judge is his time period in his office starting from the day of his appointment till the day he holds his office. In India, the appointment of a higher judiciary is made with effective consultation. The power of appointment and removal of the judiciary is vested with the President. A judge can even resign by writing a letter to the President to end his tenure.
[1] Supreme Court of India, available at https://main.sci.gov.in/constitution , last seen on 11th July 2021
[2] SP Gupta v. Union of India, AIR 1982 SC 149
[3] Supreme Court Advocates-on-Record Association v. Union of India,(1993) 4 SCC 441
[4] Re Special Reference 1 of 1998, (1998) 7 SCC 739
[5] Ibid
[6] Supra 3
[7] Supra 4
[8] Supreme Court Advocates-on-Record Association v Union of India, (2016) 5 SCC 1
