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    Separation of Powers

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    Pol sci

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    Separation of powers

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    Establishment and Constitution of Supreme Court under Article 124 of

    the Constitution

    The makers of the Constitution of India advocated for Separation of Power


    and demarcated the limits, roles and functions of every organ Click to share
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    Published on May 1, 2023By Editor_4

    The makers of the Constitution of India advocated for Separation of Power


    and demarcated the limits, roles and functions of every organ of the State
    i.e., the Legislature, Executive and the Judiciary.1 The forefathers of the
    Constitution were far-sighted and knew that disputes between the organs of
    the State were expected, thus, an independent judicial body acting
    impartially was considered as an essential feature of the Constitution.2

    Independence of Judiciary from other organs of the State as well as


    independence of every Judge within the Judiciary is necessary for a
    Constitutional democracy, to ensure the rule of law. Provisions concerning
    the Union Judiciary are enshrined in Part V, chapter IV of the Constitution.
    Article 124 of Chapter IV states the establishment and constitution of the
    Supreme Court. It prescribes the strength of the Supreme Court Judges,
    along with their qualifications, appointment and removal method.

    Article 124 of the Constitution of India provides Establishment and


    Constitution of Supreme Court.

    Article 124(1) states that 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 [thirty-three] other Judges.

    The latest amendment was made by the Supreme Court (Number of


    Judges) Amendment Act, 2019, which fixed the maximum number of
    Judges in the Supreme Court at thirty-three, excluding the Chief Justice of
    India.3
    Appointment of Judges

    Article 124 (2), vests power on the President to appoint every Judge of the
    Supreme Court including the Chief Justice of India, by warrant under his
    hand and seal. Appointment of the Judges of the Judges shall be made
    after consultation with such Judges of the Supreme Court and of the High
    Courts in the States, as the President may deem necessary. The appointed
    Judge shall hold office until he attains the age of sixty-five years.

    First proviso to clause (2) states that in the case of appointment of a Judge
    other than the Chief Justice, the Chief Justice of India shall always be
    consulted:

    The word ‘Consultation’ in Article 124 has been interpreted by the Supreme
    Court in various case laws.

    In S.P. Gupta v. Union of India, 1981 Supp SCC 87 (First Judges Case), it
    was held that ‘consultation’ in Article 124 means ‘mere consultation of
    views’ and not ‘concurrence of views’. Therefore, the Court said that the
    President was not bound by the opinion of the Chief Justice.

    In Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4


    SCC 441(Second Judges Case), overruled S.P Gupta v. Union of India,
    (supra) and held that in matters of appointment of Judges, the opinion of
    the Collegium has primacy, therefore, ‘consultation’ means ‘concurrence of
    views’. The President is bound by the views of the Collegium.

    Also, the Supreme Court in Supreme Court Advocates-on-Record Assn. v.


    Union of India, (1993) 4 SCC 441, and in Special Reference No. 1 of 1998,
    Re, (1998) 7 SCC 739, emphasized upon “integrated participatory
    consultative process” for the purpose of appointment of Judges. It was held
    that the opinion of the Chief Justice of India must prevail over the
    President’s opinion in the matters of appointment. The Collegium system
    was advanced for the purpose of appointment of the Judges, consisting of
    the Chief Justice of India and four-most senior Judges of the Supreme
    Court.
    Resignation and Removal from Office

    Second Proviso to Clause (2) states that-

    1. a Judge may, by writing under his hand addressed to the President,


    resign his office.
    2. a Judge may be removed from his office in the manner provided in
    clause (4).

    Qualifications for appointment as Supreme Court Judge

    The Constitution (Ninety-ninth Amendment) Act, 2014, (‘99th Amendment


    Act’) inserted article 124, clause (2-A), it states that the age of the Supreme
    Court Judge shall be determined by such authority and in such manner as
    Parliament may by law provide.

    Clause (3) states that a person shall not be qualified for appointment as a
    Judge of the Supreme Court unless,

    1. he is a citizen of India and,


    2. has been for at least five years a Judge of a High Court or of two or
    more such Courts in succession; or
    3. has been for at least ten years an advocate of a High Court or of two
    or more such Courts in succession; or
    4. is, in the opinion of the President, a distinguished jurist.

    “High Court” in clause (3) means a High Court which exercises, or which at
    any time before the commencement of this Constitution exercised,
    jurisdiction in any part of the territory of India, as per Explanation I to clause
    (3).

    Oath

    Clause (6) states that every person appointed as Judge of the Supreme
    Court shall, make and subscribe an oath or affirmation before the
    President, or some person appointed in that behalf by him, according to the
    form set out for the same purpose in the third schedule.
    Method of Removal

    Clause (4) states that a Judge of the Supreme Court shall not be removed
    from his office except by an order of the President passed after an address
    by each House of Parliament supported by a majority of the total
    membership of that House and by a majority of not less than two-thirds of
    the members of that House present and voting has been presented to the
    President in the same session for such removal on the ground of proved
    misbehaviour or incapacity.

    The Supreme Court in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee,


    (1995) 5 SCC 457, defined ‘misbehaviour’ as ill conduct, improper or
    unlawful behaviour.

    As per clause (5), the Parliament may by law regulate the procedure for the
    presentation of an address and for the investigation and proof of the
    misbehaviour or incapacity of a Judge under clause (4).

    Clause (7) provides that no person who has held office as a Judge of the
    Supreme Court shall plead or act in any court or before any authority within
    the territory of India.

    FAQ’s

    Q. What is the latest amendment to Article 124 of Constitution of India?

    A. There were two latest amendments to Article 124, namely:

    1. The Supreme Court (Number of Judges) Amendment Act, 2019


    (‘Number of Judges Amendment Act’) and,
    2. The Constitution (Ninety-ninth Amendment) Act, 2014 (‘99th
    Amendment Act’)

    The Number of Judges Amendment Act, 2019, amended clause (1) and
    fixed the maximum number of Judges in the Supreme Court at thirty-three,
    excluding the Chief Justice of India. Earlier the number of Judges
    prescribed in Article 124, clause (1) was thirty.
    The bill for 99th Amendment Act, i.e., the Constitution (One Hundred and
    Twenty- First Amendment) Bill, 2014 was introduced in the Lok Sabha on
    August 11, 2014, by the Minister of Law and Justice, Mr. Ravi Shankar
    Prasad and received the President’s assent on the 31-12- 2014.

    The words “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”, were substituted with words “on the
    recommendation of the National Judicial Appointments Commission
    referred to in article 124A”.

    The first proviso to Article 124 (2), – “Provided that in the case of
    appointment of a Judge other than the Chief Justice, the Chief Justice of
    India shall always be consulted”, was omitted by the 99th Amendment Act.

    The words in second proviso, “Provided further that”, was substituted by


    “Provided that”.

    However, the Supreme Court in Supreme Court Advocates-on-Record


    Assn. v. Union of India, (2016) 5 SCC 1, declared the 99th Amendment Act,
    to be unconstitutional and void, as it violated the principles of basic
    structure of the Constitution which provides for separation of powers
    between the judiciary and the executive.

    Q. What is Article 124 clause (2)?

    A. Article 124, clause (2) lays down the appointment procedure of the
    Supreme Court judges.

    It states that 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:
    The first proviso to clause (2) states that in the case of appointment of a
    Judge other than the Chief Justice, the Chief Justice of India shall always
    be consulted.

    It has also been provided the method of resignation by the Judges. The
    Judge may resign by writing to the President under his hand.

    Q. What is Article 124 to Article 147?

    A. Chapter IV of the Constitution of India, – The Union Judiciary, provides


    for Article 124 to Article 147. It deals with the constitution, establishment
    and jurisdiction of the Supreme Court.

    Q. What is ‘consultation’ in Article 124?

    A. The President’s power to appoint judges has been laid down under
    Article 124(2). However, the appointing power has certain restrictions from
    within the article itself. The President is required to ‘consult’ the judges of
    Supreme Court, and of the High Courts, as he may deem necessary. The
    first proviso to Article 124 has also required the President to consult with
    the Chief Justice of India while appointing other judges.

    The Supreme Court in Supreme Court Advocates-on-Record Assn. v.


    Union of India, (1993) 4 SCC 441, defined the meaning of the term
    ‘consultation’. It was held that ‘consultation’ means ‘concurrence of views’,
    the President is bound by the views of the Collegium in matters of
    appointment.

    1. Constituent Assembly Debates,


    https://eparlib.nic.in/bitstream/123456789/762994/1/cad_10-12-1948.pdf.
    (last accessed on May 01, 2023).

    2. Mahendra Pal Singh, V.N Shukla’s Constitution of India, 503, 12th ed.
    2013.
    3. The Supreme Court (Number of Judges) Amendment Act, 2019, Sec. 2,
    No. 37 of 2019, Acts of Parliament, 2019 (India).

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