Article 124 of the Indian Constitution deals with the establishment and constitution of the Supreme Court. Clause (2) of this article is pivotal as it lays down the fundamental process for the appointment of judges to the nation’s highest court and specifies their tenure. This clause has been the subject of significant legal interpretation and controversy over the years, particularly concerning the meaning and extent of “consultation” required for appointments, shaping the relationship between the executive and the judiciary.
The mechanism prescribed in Article 124(2) is crucial for maintaining the independence of the judiciary, a cornerstone of India’s democratic structure. The manner in which judges are appointed and their security of tenure directly impacts their ability to discharge their duties without fear or favour. Understanding this article is therefore essential for comprehending the institutional design of the Indian judiciary and its evolution.
Original Text
The original text of Article 124(2) of the Constitution of India reads as follows:
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal 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 for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the chief Justice, the Chief Justice of India shall always be consulted.
Detailed Explanation
Article 124(2) mandates that the appointment of every Judge of the Supreme Court is to be made by the President of India. This appointment is formalized through a warrant issued under the President’s hand and seal, signifying the official nature of the appointment by the Head of State.
The original text stipulated that the President shall make these appointments “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 for the purpose”. This phraseology introduced the element of judicial consultation into the appointment process. A crucial proviso was added, stating that in the case of appointing a Judge other than the Chief Justice of India, the Chief Justice of India shall always be consulted.
The term “consultation” in Article 124(2) became the subject of intense judicial scrutiny and interpretation. Initially, it was interpreted to mean merely seeking the opinion of the consulted judges, with the executive retaining the final authority. However, over several landmark judgments, notably the First, Second, and Third Judges Cases, the Supreme Court reinterpreted “consultation” to mean “concurrence,” effectively giving primacy to the opinion of the judiciary in the appointment process.
- First Judges Case (S.P. Gupta v. Union of India, 1982): The Supreme Court held that “consultation” did not mean concurrence and the ultimate power of appointment rested with the executive.
- Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993): Overruling the First Judges Case, the Court interpreted “consultation” as “concurrence” and established the Collegium system for appointing Supreme Court and High Court judges. For Supreme Court appointments, the Collegium comprised the Chief Justice of India and the two seniormost judges of the Supreme Court.
- Third Judges Case (In re Presidential Reference, 1998): This case clarified and expanded the Collegium, stating that the Collegium for Supreme Court appointments should consist of the Chief Justice of India and the four seniormost judges of the Supreme Court. The executive is bound by the recommendations of this Collegium.
Subsequently, the Constitution (Ninety-ninth Amendment) Act, 2014 sought to replace the Collegium system with the National Judicial Appointments Commission (NJAC). This amendment introduced a new Article 124A which outlined the composition of the NJAC, a body comprising members from the judiciary, executive, and civil society. However, in 2015, the Supreme Court in the Fourth Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 2015) declared the 99th Amendment and the NJAC Act unconstitutional and void, citing that it undermined the independence of the judiciary. As a result, the Collegium system, as established in the Second and Third Judges Cases, was revived and remains the current mechanism for judicial appointments under Article 124(2).
Besides the appointment process, Article 124(2) also specifies the tenure of a Supreme Court Judge. A Judge shall hold office until they attain the age of sixty-five years. There is no fixed term for a Supreme Court Judge; their tenure is determined by this age limit. A judge can, however, resign from office by writing to the President or be removed from office by the President on the ground of proved misbehaviour or incapacity following a process of impeachment by Parliament (as outlined in Article 124(4)). The age of a judge is determined by such authority and in such manner as Parliament may by law provide (Article 124(2A)).
Detailed Notes
- Appointment Authority: Every Supreme Court Judge is appointed by the President of India.
- Formal Instrument: Appointment is made by a warrant under the President’s hand and seal.
- Consultation Requirement (Original Text):
- President must consult such Supreme Court and High Court Judges as deemed necessary.
- Chief Justice of India (CJI) must always be consulted for appointing Judges other than the CJI.
- Evolution of Consultation (“Collegium System”):
- Interpreted as mere opinion (First Judges Case, 1982).
- Interpreted as concurrence, establishing Collegium (Second Judges Case, 1993).
- Collegium composition clarified (CJI + 4 seniormost SC Judges for SC appointments - Third Judges Case, 1998).
- Executive is bound by Collegium recommendations (established through judicial interpretation).
- NJAC Attempt:
- Constitution (99th Amendment) Act, 2014 introduced NJAC to replace Collegium.
- NJAC Act, 2014 provided details of the commission.
- NJAC and 99th Amendment declared unconstitutional by SC (Fourth Judges Case, 2015), restoring the Collegium.
- Tenure: A Judge holds office until attaining the age of sixty-five years.
- No Fixed Term: Tenure is determined by the age limit, not a fixed number of years.
- Other ways of demitting office: Resignation (to President), Removal (Impeachment under Article 124(4)).
- Age Determination: Parliament can make law regarding determination of judge’s age (Article 124(2A)).
- Significance: Article 124(2) is crucial for ensuring the independence of the judiciary by regulating how judges are appointed and how long they serve.
Additional Comments
- Article 124(2A) was inserted by the Constitution (Fifteenth Amendment) Act, 1963, allowing Parliament to enact a law for determining the age of a judge.
- The “consultation” requirement, as interpreted by the Supreme Court, has transformed the role of the judiciary from a consultative body to having primary control over the appointment process.
- The debate over the appointment process highlights the delicate balance of power between the judiciary, executive, and legislature.
- Understanding the judgments interpreting Article 124(2) is essential for grasping the current state of judicial appointments in India.
Summary
Article 124(2) of the Indian Constitution outlines the procedure for appointing Judges to the Supreme Court and their tenure. The President appoints Judges by warrant under seal. Originally requiring consultation with Supreme Court and High Court Judges, especially the Chief Justice for non-CJI appointments, the interpretation of “consultation” evolved through judicial pronouncements from mere opinion to concurrence, leading to the establishment and continuation of the Collegium system despite a legislative attempt via the NJAC. Judges hold office until the age of sixty-five years, with provisions for resignation or removal through impeachment. This article and its interpretation are fundamental to the structure and independence of the Indian judiciary.